SIDDIQUI (Migration)

[2018] AATA 5209

SIDDIQUI (Migration) [2018] AATA 5209 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hassan Ahmed SIDDIQUI

CASE NUMBER:  1701760

HOME AFFAIRS REFERENCE(S):           BCC2016/3271307

MEMBER:Joseph Lindsay

DATE:14 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 14 December 2018 at 10:26am

CATCHWORDS
MIGRATION – cancellation – Subclass 573 Higher Education Sector visa – not enrolled in registered course – mental health issues – long history of changes to student enrolment and many cancellations – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116(1)(b), 140
Migration Regulations 1994, Schedule 2, Schedule 8 condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 January 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to remain in a registered course of study and breached condition 8202(2)(a) of his student 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 11 October 2018 to give evidence and present arguments. The applicant was not represented by a registered migration agent at the Tribunal hearing.

4. 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

5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

6. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·     be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2);

   ·     has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a); and

   ·     has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

8. In the hearing, the applicant agreed that he had breached condition 8202(2)(a) as he had not been enrolled in a registered course of study between 24 March 2015 and 16 October 2016, and he had not been enrolled in a registered course of study since 10 January 2017.

9. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

10. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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’.

    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

11. In response to this issue at the hearing, the applicant indicated his main purpose in travelling to Australia was to study. He indicated that once he finishes his course he wants to return to Pakistan.

12. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

13. In response to this issue at the hearing, the applicant indicated he had complied with his visa conditions. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202.

14. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

15. In response to this issue at the hearing, the applicant indicated that if his visa was cancelled he would suffer some hardship primarily because it would upset his family if he went back to Pakistan without his higher education qualification.

16. In consideration of the applicant’s response, the Tribunal accepts that the applicant may suffer some hardship if his visa was cancelled in the circumstances as he has detailed.

17. The Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

18. There is no evidence that the applicant has been uncooperative with the Department in the past.

19. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

20. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his student visa.

21. The Tribunal places low weight on this information in the applicant’s favour.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

22. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa.

23. The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully.

24. At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to Pakistan.

25. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

26. The Tribunal places low weight on this information in the applicant’s favour.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

27. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled.

28. The Tribunal places low weight on this information in the applicant’s favour.

    The circumstances in which the ground for cancellation arose

29. A large part of the applicant’s submissions relate to the circumstances in which the ground for cancellation arose, including:

    a.  the applicant’s response to the Department dated 10 January 2017.

    b.   the applicant’s submissions to the Tribunal on 5, 9 and 12 October 2018.

30. In the applicant’s response to the Department dated 10 January 2017, the applicant indicated that when he started his course in September 2014, he lived with some of his friends in a share house in Derrimut Victoria. However, the indicated that these ‘friends’ ended up taking advantage of him financially. The applicant indicated he ended up leaving the share house but that the experience had an adverse impact on him and his ability to study.

31. The applicant indicated that over the course of time he suffered anxiety and depression and took illicit substances (marijuana). He indicated that due to his circumstances he was not able to study, but when his circumstances improved he resumed his studies.

32. In support of his claims, he provided a medical certificate dated 5 January 2017, a prescription dated 5 January 2017, an undated letter from Jyotsna Singh of PAX Institute and a receipt for a money transfer.

33. On 5 October 2018, the applicant provided:

    a.   his visa grant notice dated 8 February 2017.

    b.   documentation in relation to the applicant’s enrolment at Cambridge International College.

    c.   a referral from D T. Rajapaksha dated 4 December 2016.

    d.   a letter from Kamala Rajan of Cambridge International College dated 1 March 2017.

    e.   a medical certificate from Dr Asanka Lakmal Samarakoon dated 5 January 2017.

    f.    a psychology report from Ms Lucy Verwey dated 26 September 2018.

    g.   an undated letter from Jyotsna Singh of PAX Institute.

34. On 9 October 2018, the applicant provided:

    a.   a submission from his agent, Mr Imran Al, dated 8 October 2018.

    b.   receipts for money transfers dated 17 September 2018, 11 May 2018, 1 July 2017, 14 June 2017, 19 May 2017, 14 November 2017.

35. On 11 October 2018, the applicant provided:

    a.   documentation in relation to the applicant’s enrolment at Cambridge International College.

36. On 12 October 2018, the applicant provided further copies of information previously supplied to the Tribunal.

37. In the hearing, the Tribunal asked the applicant what he had been doing from the time he had his visa granted to the time he had his visa cancelled – from 2014 to 2017. In response, the applicant indicated that he had a ‘study gap’ of more than a year, from 2015 to 2016, and that the only course he had completed was an English language course.

38. The applicant indicated that a traumatic incident occurred when he first commenced his studies in late 2014, and that this incident led to him experiencing significant anxiety and depression – a situation that continued for years and was probably the most significant reason as to why he neither started nor completed any higher education courses since he has been in Australia.

39. The applicant explained that the traumatic incident in 2014 occurred when he lived with Raza, Rameez and Raziz, who were all Pakistani men. He said at first they told him he was like their ‘brother’ but then used him financially when, for example, they used his identification to put the internet connection on without him knowing, they used his stuff a lot, and he handed over money to them and they never paid him back. The applicant indicated that Raza, Rameez and Raziz were trying to get him involved in criminal activity and get into scams, even though they themselves were not involved in criminal activity. The applicant explained that these circumstances occurred to him over the course of the three weeks he lived in the house with Raza, Rameez and Raziz. The applicant indicated that he then lived with Naeem in Sunshine.

40. The applicant explained that this experience in 2014 led to him suffering anxiety and depression to such a significant degree that he was not able to study until his visa was cancelled in 2017. He indicated he never approached the Department with his circumstances. However, the applicant did indicate he sought medical assistance for his mental health issues.

41. The applicant claimed he went to Derrimut Medical Centre in 2014, but had no documentation to prove this.

42. The applicant claimed he was prescribed sleeping pills. He said he took Diazepam but had no documentation to prove this.

43. The applicant claimed he took sleeping pills for two weeks but stopped taking them because he did not want to depend on them.

44. The applicant claimed he was prescribed and took Xanax (i.e. anti-anxiety medication) but had no documentation to prove this.

45. The applicant claimed he lost his medical information from 2014.

46. The Tribunal considered the medical documentation the applicant did provide to the Tribunal.

47. The Tribunal considered the medical certificate dated 5 January 2017, that states:

    This is to certify that Mr Hassan A Siddiqui has been receiving Medical Treatment from our clinic since June 2015 for mixed anxiety and depression disorder. His psychological stress may have affected his studies during this period until todate (sic).

48. The Tribunal put to the applicant that the medical certificate dated 5 January 2017 does not show that he sought medical treatment for anxiety and depression in 2014 and, accordingly, the Tribunal may put low weight on his submission that he had a medical condition in 2014 or sought medical treatment in 2014. In response, the applicant indicated that he could go back to Derrimut Medical Centre to obtain the information for the Tribunal. As of the date of this decision, the applicant has not provided any such information to the Tribunal.

49. The Tribunal asked the applicant about his medical treatment in 2015. In response, the applicant indicated he did not seek medical treatment but instead smoked weed (marijuana) for one month in 2015. The applicant freely admitted to the Tribunal that he made the decision of his own free will to smoke marijuana and that no one forced him to smoke marijuana. The applicant freely admitted he knew marijuana was an illegal substance. The applicant freely admitted to the Tribunal that he chose to take this course of action rather than to obtain medical advice from a mental health practitioner to deal with his mental health situation. The applicant freely admitted that he reasonably knew at that point in time that he had a problem in complying with his visa.

50. The Tribunal indicated to the applicant that the only evidence from a medical practitioner about his claimed mental health situation was a single page with three lines indicating that he had been receiving 18 months of mental health treatment between mid 2015 and early 2017 – yet no other documentation had been provided with specific information about his medical treatment over the course of that significant period of time. In response the applicant stated ‘this is what they gave me.’

51. When the Tribunal queried the applicant about what medication he had been taking for the 18 months, he indicated that he did not remember. The applicant then indicated he did not take medication. The applicant then indicated he did take medication ‘once or twice’. The applicant then indicated the medical practitioner concerned, Dr Samarakoon, just told him to take deep breaths to calm down.

52. The Tribunal indicated to the applicant that he was vague about what medical treatment he had over the 10 months. In response, the applicant indicated he did take medication for 18 months but he did not know the name of the medication he took. He then indicated he took the medication for 12 months. He indicated he would email the Tribunal after the hearing with particular information about what medication he took. As of the date of this decision, the applicant has not provided any such information to the Tribunal.

53. The only prescription document provided to the Tribunal was the one from Dr Samarakoon dated 5 January 2017, the same day Dr Samarakoon wrote the medical  certificate, prescribing the applicant ‘Lexapro’, which is an anti-depressant. The Tribunal put to the applicant that the script has not been filled.  The applicant then claimed he did take Lexapro but only for one or two weeks, and then he did not take any medication at all after that.

54. The Tribunal asked the applicant how many times he went to Derrimut Medical Centre between June 2015 and January 2017. In response, the applicant indicated he went to Derrimut Medical Centre, on average, once a month, with about 18 visits in total in that time period – yet he had no documentation to provide in support of this claim. As of the date of this decision, the applicant has not provided any such information to the Tribunal.

55. The Tribunal asked the applicant if he went to a psychologist between June 2015 and January 2017; he denied doing this.

56. The Tribunal notes that the only medical documentation during this period (between June 2015 and January 2017) is the referral from Dr Rajapaksha to Mr Ravi Lulla dated 4 December 2016. The Tribunal notes that this report is from Greenvale Medical Centre and not Derrimut Medical Centre.  In this document, Dr Rajapaksha indicated that he consulted the applicant on 4 December 2016, and that the applicant ‘presented with anxiety symptoms post sessation from Recreation drugs’ (sic). In this document, Dr Rajapaksha indicated that, on the same day, he prescribed the applicant the medication ‘Diazepam.’  

57. The Tribunal then discussed the psychology report dated 26 September 2018. The report states:

    This letter is in support of Hassan's case regarding pertaining to his student visa. This letter was provided at his request.

    Hassan arrived in Australlia on 4th July, 2014 on a student visa to pursue his tertiary education. His parents, who reside in Pakistan, are financially supporting Hassan to study. This is a significant financial sacrifice for his family; they sold their house so that he could study in Australia.

    Hassan was born and grew up in Pakistan. After his arrival in Australia, he struggled to adjust to living and studying in new country. He had difficulties finding stable accommodation and he moved a number of times before settling in to living with a group of men, also from Pakistan. This ultimately was not a helpful social environment for Hassan. He felt they took advantage of him financially and the home environment was not conducive for him to establish functional study routines. 

    Hassan faced significant stress whilst living in Australia. He was informed by his family that his father was diagnosed with Alzheimer's disease. He has been highly distressed by this news, particularly as he has not been able to travel to Pakistan to visit him. He feels immense grief and distress about his father's condition, particularly as there are times when he speaks with his father on the phone and he cannot recall who Hassan is. Further to this, Hassan has felt extremely worried about his mother, who has experienced anxiety and depression as a result of his father's diagnosis. Hassan was also preoccupied with worries about his brother, who lives in Pakistan and has been addicted to heroin. Hassan has been in regular contact with his brother's wife to provide her with moral support to cope with the situation. During this period Hassan had limited functional social supports, he felt isolated and overwhelmed. I believe that Hassan was not well-equipped with appropriate coping skills to manage adjusting to life in Australia at the time. He tended to withdraw and tended to use avoidance, which tended to perpetuate an unhelpful cycle which increased his distress.

    During this time, Hassan experienced symptoms of panic, overwhelming fears, feeling of loneliness, persistent, worrisome thoughts, lack of motivation, difficulty concentrating, disturbed sleep and persistent low mood. He was diagnosed with anxiety and depression and he began to engage in psychological treatment. Based on his past history, it is likely that due to growing up in an environment with inappropriate discipline and high levels of pressure, he did not develop adaptive ways to cope with stress.

    Since late 2016, Hassan began to develop more adaptive coping strategies and has achieved greater levels of stability and adjustment in his life. He moved out of the share house to live with a family. This provided a more supportive, stable and functional family environment for him. He has also started to develop healthier and more functional behaviours, such as exercising regularly and maintaining supportive friendships. His symptoms of anxiety and depression have reduced significantly. Hassan intends to continue his treatment to effectively manage his mental health.

    In September 2016 Hassan enrolled to study a Diploma in Leadership Management. He felt very positive about successfully engaging in this study and began to feel a sense of achievement. However, his student visa was cancelled in January 2017 and so he had to withdraw from this study program. Hassan is hoping that his student visa can be extended so that he can a Bachelor of Marketing. He is highly fearful of returning to Pakistan without completing his studies. He is motivated to undertake his studies and return to Pakistan to build a positive future and study support his family.

1. When the Tribunal asked the applicant why he did not return to Pakistan to visit his father, he indicated that he did not want his father to know what had happened to him in Australia and he could not travel due to his depression and anxiety. He also claimed that his migration agent told him he could not travel back to Pakistan. Ultimately, the applicant indicated that it was his choice not to return to Pakistan.

2. When the Tribunal asked the applicant when his brother started taking heroin, he indicated that he was not sure but that his brother is not taking heroin anymore and has gone to rehabilitation.

3. When the Tribunal asked the applicant if he had any other documentation in respect to his father’s situation, mother’s situation or brother’s situation, he did not have it. As of the date of this decision, the applicant has not provided any such information to the Tribunal.

4. The Tribunal indicated to the applicant that earlier in the hearing the applicant had indicated he had mental health issues as a result of a traumatic situation with his housemates in 2014, yet the psychology report claimed that the applicant told the psychologist that his mental health issues arose due to his family circumstances back in Pakistan. In response, the applicant indicated that he had two pressures on him including from his family in Pakistan and those he experienced in Australia. 

5. The applicant claimed he had seen Ms Verwey once a month since the beginning of 2017 for treatment. Tribunal indicated to the applicant that the psychology report did not indicate the time period that the applicant had received treatment from the psychologist. With the applicant’s consent, the Tribunal attempted to telephone Ms Verwey to seek further information but was not able to make contact.

6. In accordance with s.359AA of the Act, the Tribunal then discussed the applicant’s Provider Registration and International Student Management System (PRISMS) record with him. The applicant indicated to the Tribunal that in the entire time he has been in Australia he has not completed any higher education course.

7. The Tribunal queried the applicant as to why he did not tell the Department about his family circumstances in Pakistan when he provided his response dated 10 January 2017. In response, the applicant claimed that he only had seven days to respond and only wrote what was in his mind.

8. The Tribunal put to the applicant that he had a very long history of changes to his student enrolment and many cancellations. The Tribunal put to the applicant that, based on his past history, if he got his student visa the likelihood of him doing his study was not high.

9. In response, the applicant indicated he had made a mistake and that his mind was not in good condition for many years.

10. The Tribunal put to the applicant that it had very little information in regard to the applicant’s mental health situation to support his claim that he was now able to undertake studies.

11. In response, the applicant indicated that he has been through a hard time and that everyone deserves a second chance in life.

12. The Tribunal indicated to the applicant that he had been in Australia not studying for a very long time by the time the Department came to him and told him he was not complying with his visa.

13. In response, the applicant indicated he accepted what the Tribunal had put to him. The applicant indicated he accepted there was a lack of medical information.  

14. In consideration of the above information, the Tribunal accepts that the applicant’s primary assertion is that his mental health issues impeded his ability to study from the time he got his student visa in 2014. The Tribunal accepts that the applicant has experienced mental health issues since 2014, whether it is as a result of the traumatic incident with his housemates in 2014 or whether it is due to his family circumstances back in Pakistan.

15. However, the Tribunal finds that there is very little information about the applicant’s mental health treatment since he claimed he started having anxiety and depression in 2014. The Tribunal finds that the applicant took illicit substances (marijuana) in 2015 and that the consequences of the applicant’s actions caused him to present to Dr Rajapaksha on 4 December 2016 with anxiety symptoms due to ‘post sessation of Recreational drugs’ (sic).

16. Accordingly, given the applicant’s student record since 2014, his use of illicit substances and poor record of medical management of his mental health issues, the Tribunal is not satisfied that the applicant’s circumstances are exceptional circumstances outside of his control and the Tribunal is not satisfied that the applicant is likely to be able to successfully study and complete any higher education courses in the future if he was to have a student visa.

    Any other relevant matters

17. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated there were no matters he wanted to raise other that he wanted one chance for a degree and he wanted to show people who make fun of depression how bad it is. The Tribunal places low weight on these matters.

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

    Conclusion

19. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 16 June 2014, now some four and a half years ago, the applicant has not completed any higher education courses.

20. The Tribunal finds that the applicant had not been enrolled in a registered course of study between 24 March 2015 and 16 October 2016, and he had not been enrolled in a registered course of study since 10 January 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

21. The Tribunal finds that the circumstances that led the applicant to not complete any higher education courses, as detailed above, are not exceptional circumstances. 

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

    DECISION

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

    Joseph Lindsay
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.