Sheng (Migration)

[2020] AATA 187

Sheng (Migration) [2020] AATA 187 (30 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhiguang Sheng

CASE NUMBER:  1731798

HOME AFFAIRS REFERENCE(S):           BCC2017/3114901

MEMBER:Stephen Conwell

DATE:30 January 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 30 January 2020 at 5:07pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – continue satisfaction of primary criteria – enrolment in the higher education sector – consideration of discretion – mental health issues – no ongoing treatment plan – significant breach – purpose of visa not fulfilled – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 December 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the delegate found the applicant had breached condition 8516 which was attached to his Subclass 573 Higher Education Sector visa. The delegate went on to consider that the factors in favour of cancellation outweighed those against, and cancelled the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 12 December 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, these include the ground set out in s.116(1). If satisfied that the ground for cancellation is made out, the decision-maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8516 attached to the applicant’s visa. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

8. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231.

   Does the ground for cancellation exist?

9. The applicant provided to the Tribunal a copy of the delegate’s decision record, for the purpose of the review.  The decision record indicates that on 29 April 2014, the applicant was granted a visa in Subclass 573 Higher Education Sector on the basis of his enrolment in a higher education sector level course. According to the delegate’s decision record, the applicant has not been enrolled in a Bachelor’s degree or Master’s degree course since 31 March 2015, and that he is not currently enrolled in a course of study that is a principal course of a type specified for a Subclass 573 visa, by the Minister, in an instrument made under regulation 1.40A.

10. On 2 November 2019, the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that he had failed to comply with condition 8516 of his visa, because he had ceased to be enrolled in a Higher Education Sector course.  The applicant did not respond to the NOICC within the time allotted and the applicant’s visa was cancelled by a decision dated 11 December 2017.

11. Condition 8516 requires that the visa holder must ‘continue to be a person who would satisfy the primary or secondary criteria… for the grant of the visa’.  Condition 8516 contains a temporal requirement in the words ‘continue to be’.  In the context of a visa condition which applies at all times while the visa is held, the Tribunal is of the view that this condition must be met at all times.  The use of the term ‘would satisfy’ the criteria, suggests that it applies as if the criteria were being assessed at the time compliance with the condition is required, that is, at any time during the period of the visa.  Therefore, if the applicant ceases to be enrolled in a principal course of a kind specified for the particular subclass, in this case, a higher education course, the applicant breaches condition 8516 of the visa, irrespective of subsequent re-enrolment.

12. At the hearing, the applicant confirmed that he held an enrolment in a Bachelor of Business, on his arrival in Australia.  He indicated he was unable to proceed with this enrolment when, despite his best efforts, he began to failed to pass his English language course.  He conceded he was not enrolled in a higher sector course of study after 4 February 2016, and up until the a few days before his Tribunal hearing.  He acknowledged that this was in breach of condition 8516.

13. On the basis of the information set out in the delegate’s decision, and on the applicant’s evidence, the Tribunal is satisfied that when the applicant’s enrolment in a Bachelor of Business was cancelled on 31 March 2015, he did not continue to satisfy cl.573.231 or cl.573.223(1A), and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa.  There is no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa.  The Tribunal therefore finds that he breached condition 8516 of his student visa.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

15. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

16. The applicant told the Tribunal that after completing high school in China he wanted to come to Australia to pursue a tertiary qualification, before returning home to settle in to a career.  He confirmed he was granted his visa on the basis of his enrolment in his principal course of study, a Bachelor of Business.

17. At the hearing the applicant provided the following information by way of oral evidence:

    ·He did not complete his foundation language course because he developed ‘mental issues’, for which he consulted a psychologist. When the Tribunal queried whether he had supporting evidence for these claims, the applicant replied that he had no evidence with him but he would endeavour to provide such evidence to the Tribunal if he was granted further time in which to do so. The applicant claimed that his inability to complete the English language course created great anxiety for him, which was the underlying reason for his poor academic record and for not complying with visa condition 8516. He claims that he saw a psychologist for his anxiety and was advised to change from his bachelor course to study in the vocational and education (VET) sector.

    ·He confirmed that he did not speak to his education provider regarding his study difficulties and the possible reasons giving rise to them. Nor did he contact the Department to enquire how his study difficulties might impact upon his visa status. Instead, upon cancellation of his enrolment in his principal bachelor studies on 31 March 2015, he enrolled two months later in a diploma of management at Clarendon Business College. He completed this diploma in October 2016 and went on to complete an Advanced Diploma in Leadership and Management in November 2017.  He is currently enrolled in an Advanced Diploma of Marketing and expects to complete this in mid-2020.

    ·He has no family in Australia; both his parents are professionals in China. Both have health problems for which supporting medical evidence has been submitted to the Tribunal. His mother’s medical records (translated into English) indicate that she suffers from moderate depression and related symptoms of anxiety and insomnia. She appears to receive treatment as an ‘outpatient’ in her local hospital. The applicant’s father also has medical records from the same local hospital (translated into English). He was a smoker for most of his life, but he appears to have quit smoking in recent years. He is a moderate drinker of alcohol on a daily basis. He complained of general dizziness and nausea, accompanied by poor appetite however his medical records disclose no specific ailment or disease.

    ·When speaking about his own health the applicant mentioned that has been smoking for several years and he smokes between 1 to 2 packets of cigarettes a day.  He submitted to the Tribunal his medical record from the Rowe Street Medical Centre. This records his heavy smoking and his intermittent medical concerns and the subsequent blood tests, x-rays and other procedures. The applicant did not direct the Tribunal to any particular health condition within his own medical records, however the Tribunal notes that his medical records show that he continues to be a heavy smoker smoking up to 40 cigarettes daily. Also that in April 2019 he did cough up blood on occasions. He was also prescribed a bronchodilator inhaler used in the long-term management of asthma. He was advised to quit smoking. There appears to be no prescription issued to the applicant or depression or anxiety, although he was prescribed sleeping tablets in June 2019.

    ·When the Tribunal questioned the applicant on his claims of anxiety and depression he responded that he wished to consult a counsellor or a psychologist however as he was being bullied by his class mates in his bachelor course, he concluded that the bullying would become worse if he consulted a psychologist and the bullies became aware of this fact.

    ·He claims that he didn’t receive the NOICC as it ‘went to his junk folder in his computer’. He only discovered it after the period of responding to the NOICC had ceased.  The applicant submitted a late reply to the NOICC, dated 14 December 2017, a copy of which was submitted to the Tribunal. There is no evidence either on the Departmental file or in the Tribunal file which confirms that the applicant sent this response to the Department on or about 14 December 2017 (being the date appearing on the response). However the Tribunal is prepared to accept the applicant’s letter as a belated response to the NOICC and review it on its merits.

    ·In his response the applicant states that he told his mother about his quitting his bachelor course only after he had done so. She advised him to study an easier course and this advice persuaded him to enrol in the VET sector. It was his intention to return to his bachelor studies upon attaining VET qualifications.

18. Following the hearing his representative provided a further submission by email, noting the following:

    ·His mother has been suffering from depression which has affected the applicant’s own health and ability to concentrate on his studies.  Despite the pressure and anxiety he has been experiencing, the applicant has been persevering in his VET studies.

    ·Due to the 14 credits he is entitled to, the applicant will be able to complete his bachelor degree in approximately 20 months, almost a year shorter than the usual three year period required for completion of a bachelor degree.

    ·A report dated 16 December 2019 from Ms Sally Ng, a registered psychologist, noting that the applicant was seen by her on two occasions – once on 9 October 2014 and again more than five years later, on 9 December 2019, a few days before the Tribunal hearing.  In his 2014 visit Ms Ng notes that the applicant was experiencing difficulties adjusting to his studies in Australia and the financial burden it placed on his parents, coupled with homesickness and concern for his parents’ health.  Ms Ng notes that “All interventions aimed at reducing his anxiety and helping him to have a sense of control over the [sic] life.” 

    ·The applicant next consulted with Ms Ng five years later on 9 December 2019.  He presented with a high level of emotional stress, along with co-morbid features of anxiety and depression. His agitated state again appeared to arise from concern about his parents’ health, which was now exacerbated by his concerns for his visa status. He was scheduled to have a subsequent appointment with Ms Ng on 19 December 2019. No evidence has been submitted at the time of this decision of whether the applicant attended any subsequent appointments with Ms Ng.

    ·A letter from another clinical psychologist, Mr Wilson Wong, dated 5 December 2019, it being also the date of the consultation.  Mr Wong’s letter briefly summarises the applicant’s medical history and his concern and anxiety regarding his parents’ health.  The report mentions that the applicant “smokes in [sic] occasions.”  It claims that the applicant was “traumatised by a homeless person, who asked him for a cigarette. He could not offer him. He got verbally abused for a few minutes.” The report concludes that the applicant is suffering from “major depressive episode, with extremely severe level of symptoms in stress, anxiety and depression.”  

19. The Tribunal notes that the applicant first consulted with psychologist, Ms Sally Ng in October 2014. He saw her on one occasion and did not consult with her again for five years, when he attended her rooms on 9 December 2019, a few days before the Tribunal hearing.  There is no evidence before the Tribunal that the applicant attended the subsequent session scheduled for 19 December 2019.  There is no evidence that Ms Ng advised the applicant to change his enrolment as he claims in his oral evidence.

20. The Tribunal further notes that a few days before his appointment with Ms Ng, the applicant had an initial consultation on 5 December 2019 with another clinical psychologist, Mr Wilson Wong.  Mr Wong’s report ends with the comment that he will continue to see the applicant, however again, there is no evidence before the Tribunal that the applicant has attended subsequent sessions with Mr Wong.

21. The Tribunal gives weight to the fact that despite his claims of depression and anxiety, the applicant did not attend ongoing psychological counselling following his initial visit in October 2014.  Yet in the days before his scheduled Tribunal hearing, the applicant attended two counselling sessions, one with Ms Ng, whom he had consulted once, five years ago; another being an initial consultation with another clinical psychologist, Mr Wilson Wong.  Neither psychologist’s report mentions an ongoing treatment plan or medication to treat the applicant’s anxiety or depression.  Similarly, the applicant’s medical report from his general practitioner makes no mention off the applicant being on any medication to treat his anxiety or depression.

22. The Tribunal noted that the medical reports issued in December 2019 by Ms Ng and Mr Wong speak of the applicant’s depression and high levels of stress and anxiety at the time of these consultations. The Tribunal however places limited weight on this medical evidence due to the fact that the applicant did not consult with either of the psychologists for any meaningful period; noting that the applicant consulted with Ms Ng once in 2014 and consulted with her on one other occasion in 2019, after an interval of more than five years. It appears that he consulted Mr Wong on one occasion shortly before the Tribunal hearing.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

23. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia.

24. The purpose of the Higher Education Sector visa is to enable the student to undertake study at a higher education level. The primary decision record indicates that PRISMS evidence available to the Department indicated the applicant ceased to be enrolled in a principal course of study at the higher education level from 31 March 2015.  The Tribunal considers the applicant’s breach of condition 8516 over a period exceeding four years to be significant; it finds that the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a Student visa.  The Tribunal gives this some weight in favour of cancellation.

25. The applicant did not offer any compelling reasons for him to remain in Australia in order to complete his studies. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of applicant's compliance with visa conditions

26. Two days before the Tribunal hearing the applicant enrolled in a higher education level course required by his Subclass 573 visa. The applicant had not held enrolment in a course of study specified for his visa at the Higher Education Sector (subclass 573) since cancellation of his enrolment in a Bachelor of Business on 31 March 2015. He went on to obtain qualification in the VET sector. 

27. The Tribunal is of the firm view that visa holders are expected to both study, and study at the visa subclass level for which they were approved at the time of application. This has not been the case with the applicant who was not enrolled in a higher education course for a period exceeding four years, until his enrolment in a Bachelor of Business a few days before the Tribunal hearing.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.

    The degree of hardship that may be caused to applicant and any family members if the visa is cancelled

28. The Tribunal has considered the degree of hardship that may be caused to the applicant or his family members should his Student visa be cancelled. In relation to hardship caused to himself, the applicant said he needed to complete his studies so he could pursue a successful future and to ensure that the time and financial cost that his family have invested in his studies are not wasted.  He bemoaned the fact that his medical problem ‘derailed’ his study plans and placed additional stress and anxiety on his parents.

29. The Tribunal accepts that the applicant and his family may suffer some frustration and financial hardship should his visa is cancelled and he is required to depart Australia. The applicant claims that he will suffer if he has to depart Australia without obtaining a Bachelor of Business qualification. The applicant said he will become more depressed and would not see his future as being a positive one. Further that his parents’ health would suffer upon learning of his visa cancellation.

1. The Tribunal does not however consider there to be any particular hardship imposed on the applicant’s family by the cancellation of his visa.  The Tribunal notes it is entirely open to the applicant to pursue studies upon his return to China. The Tribunal gives this claim of hardship little weight when considering its discretion to cancel the visa.

   Circumstances in which the ground of cancellation arose

2. As previously noted, the applicant’s initial enrolment in a bachelor degree ceased on 31 March 2015. Acting upon advice from his family, the applicant then enrolled in studies in the VET sector and completed an Advanced Diploma in Leadership and Management in November 2017. He has continued his studies in the VET sector, however he did renew his enrolment in the Higher Education sector a few days before his scheduled hearing. The applicant was issued with a NOICC on 2 November 2017; he has submitted to the Tribunal a written response to the NOICC dated 14 December 2017, however there is no evidence that the response was received by the Department. Nevertheless the Tribunal is prepared to accept that the belated response was received by the Department. His visa was cancelled on 11 December 2017.

3. At hearing the applicant confirmed that he made no attempt to engage with either his education providers or with the Department in order to seek a deferment of his studies or  to request a change to his visa status in line with his new enrolments.

4. Given the applicant was a direct party to his enrolment, the Tribunal is of the opinion that it is his responsibility to be aware of, and comply with the conditions of his visa whilst studying and living in Australia.  This includes being aware of any conditions such as condition 8516 which require that the applicant continue to satisfy the primary criteria that permitted the grant of the visa including that he maintain enrolment at the Higher Education Sector level.  In light of this, the Tribunal finds on the evidence he would have been aware that he had ceased enrolment with a registered education provider.  The Tribunal further notes that applicants are expected to be mindful of the requirements of their visa and to inform the Department of any changes to their status. 

5. The Tribunal finds that the applicant would reasonably have been aware that his failure to remain enrolled with an eligible higher education provider would have an impact upon his eligibility to continue to hold his Student visa.   On the evidence before it concerning the ground for which the cancellation arose, the Tribunal weighs this factor in favour of cancelling the visa.

6. The Tribunal had regard to the applicant’s evidence about his discomfort in the university level classes and the friendlier environment of the lower level courses. The Tribunal considers the applicant’s difficulty with the challenges of university level study is more likely to be the reasons for his cessation of the course for which his visa was granted rather than his episodes of anxiety and depression.

7. Accordingly the Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case. The Tribunal finds this weighs in favour of visa cancellation.

   The applicant’s past and present conduct towards the Department

8. Whilst the applicant did not respond to the NOICC within the time specified, the Tribunal is prepared to accept that his belated response was received by the Department. On balance whilst the applicant has not been in regular communication with the Department, the Tribunal finds no evidence that he has been unco-operative with the Department. 

   Whether there would be consequential cancellations under s.140

9. There is no evidence to suggest that any other person's visa would be cancelled under s.140 if the applicant's visa were to be cancelled.

   Whether any international obligations would be breached as a result of the cancellation

10. There is no evidence to suggest that the cancellation of the visa would result; it he breach of any of Australia's international obligations.

11. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s.189 and removal under s.198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s.48 bar which will limit his options in applying for further visas in Australia. The Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date. The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged. On the evidence before it concerning the mandatory legal consequences of cancellation, the Tribunal weighs this factor neither in favour nor against cancelling the visa.

12. On the evidence before it the Tribunal considers the applicant’s breach of condition 8516 for a period exceeding four years to be serious. The Tribunal has taken into account the applicant’s belated response to the NOICC, his written and oral submissions at the hearing NOICC as well the submissions and medical evidence tendered after the hearing. 

13. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

14. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stephen Conwell
    Member