Singh (Migration)

[2019] AATA 6236

Singh (Migration) [2019] AATA 6236 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Vishavdeep Singh

CASE NUMBER:  1827924

HOME AFFAIRS REFERENCE(S):     BCC2018/152450

MEMBERS:Dr Jason Harkess

DATE:13 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and substitutes in its place a decision not to cancel the visa

Statement made on 13 September 2019 at 2:41pm

CATCHWORDS

MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – not enrolled in a registered course of study – breached condition 8202  – failing to make satisfactory course progress – mental health conditions– decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189
Migration Regulations 1994 (Cth), Schedule 8
Education Services for Overseas Students Act 2000 (Cth)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

[ 1 ]The Applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 19 September 2018 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

[ 2 ]The Applicant’s student visa was granted on 21 September 2017 with an original expiry date of 30 September 2018, providing for just over 1 year during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. It was his second student visa, the first having been granted in October 2015. The second visa was granted so that he could successfully complete a Master of Engineering (Telecommunications) at the Melbourne Institute of Technology (‘MIT’).

[ 3 ]The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

[ 4 ]The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

HEARING OF APPLICATION

[ 5 ]The Tribunal convened a hearing to consider the merits of the application on 17 July 2017. The Applicant appeared before the Tribunal in person. He was assisted by his registered migration agent, Mr Purav Bhardwaj, at the hearing.

[ 6 ]For the following reasons, the Tribunal has decided to set aside the decision to cancel the Applicant’s visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

[ 7 ]The Applicant’s visa was subject to a number of conditions as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

[ 8 ]Condition 8202(2)(a) of the Applicant’s visa required that he remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 19 October 2017 to 2 August 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 9 months during which the Applicant was alleged to be in continuous breach of the visa.

[ 9 ]The delegate’s finding was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s Confirmation of Enrolment (‘CoE’) in a course for which they had previously been enrolled and the reasons for doing so.

[1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

[ 10 ]The PRISMS report obtained by the delegate indicated that the Applicant had not been enrolled in a registered course of study since 19 October 2017. The Applicant’s course provider, MIT, had cancelled his enrolment in the Master of Engineering (Telecommunications) course due to the Applicant failing to make satisfactory course progress. The PRISMS report indicated that the Applicant had not enrolled in any other registered course following 19 October 2017.

[ 11 ]The Department of Immigration and Border Protection wrote to the Applicant on 24 July 2018, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of Condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

[ 12 ]The Applicant responded to NOICC in writing on 8 August 2018 (‘the Applicant’s NOICC response’). The Applicant did not dispute that he was in breach of his visa of the period alleged by the delegate. At the hearing before the Tribunal on 17 July 2019, the Applicant also did not dispute that he was in breach of Condition 8202 for the period alleged.

[ 13 ]Based on the available information and material, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of his visa.

Consideration of the Discretion to Cancel the Visa

[ 14 ]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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The matters that ought to be considered are specifically listed in PAM3 as follows:

·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

·whether there are mandatory legal consequences arising from a decision to cancel the visa;

·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202

[ 15 ]In the Applicant’s NOICC response, the Applicant referred to a number of factors that he says resulted in him being unable to progress with his studies. These included chronic medical conditions of both his parents, which in turn caused the Applicant psychological distress. He also referred to financial difficulties he was having and his own psychological and mental health issues which impeded his ability to continue with his studies.

[ 16 ]In support of these claims, the Applicant submitted medical documentation, pertaining to both his mother and father, and psychological material pertaining to the Applicant’s own state of mental well-being. He also produced financial records in the form of his own personal bank statements.

[ 17 ]These claims were re-iterated at the Tribunal hearing on 17 July 2019. At the conclusion of the hearing, the Tribunal invited the Applicant to obtain a psychological or psychiatric assessment so that the Tribunal could be better informed about his current state of mental health, and how his state of mental health may have been attributable to the breach of Condition 8202. The Applicant underwent a psychological assessment for this purpose with Mr Edwin Kleynhans, a registered psychologist with a clinical practice in Melbourne. The Applicant provided a comprehensive psychological report dated 9 September 2019, prepared by Mr Kleynhans.

[ 18 ]Mr Kleynhans’ report paints a somewhat sad picture of the Applicant’s psychological state, as it was at the time of his breach of Condition 8202 and as it is now. Mr Kleynhans has diagnosed the Applicant provisionally with Generalised Anxiety Disorder and has formally diagnosed him with Persistent Depressive Disorder (Dysthymia) with Melancholic Features. The Tribunal does not propose to traverse all of the findings made by Mr Kleynhans detailed in his report. However, there are many observations as to the Applicant that he has made. It is clear that Mr Kleynhans has undertaken a thorough assessment of the Applicant’s current state of mental health. The Tribunal accepts those findings and the diagnoses. The Tribunal also accepts that the Applicant’s chronic anxiety and depressive disorder were likely to have been the principal cause of his inability to carry out his studies, ultimately leading to the breach of Condition 8202.

[ 19 ]The Tribunal recognises that mental health conditions, such as those suffered by the Applicant, are not attributable to conscious decision-making processes. In that respect, no blame or fault and be attributed to the Applicant for suffering them. The Tribunal accepts that, in these circumstances, his breach of Condition 8202 was largely out of his personal control.

Purpose of Applicant’s Stay in Australia

[ 20 ]The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis. Regrettably, that purpose was effectively defeated as a result of the Applicant’s chronic mental health conditions.

[ 21 ]The Tribunal has turned its mind to the possibility that the Applicant’s inability to pursue his studies in Australia may have been only temporarily set back by his mental health conditions. Mr Kleynhans stated in his report that the Applicant’s prognosis ‘is somewhat positive as he accepted the notion of ongoing psychological treatment which he would like to receive from me post the delivery of this report and ongoing counselling which should cover about 5 months … as well as the potential drug therapy from his psychiatrist as suggested by me.’

[ 22 ]The Tribunal has given this prognosis considerable weight in reaching its decision to set aside the cancellation order. If there had been a poor prognosis, there would be no point in permitting the Applicant to remain in Australia as a student. However, it seems that the Applicant may have reached a turning point. The Tribunal is prepared to give the Applicant the benefit of the doubt in these circumstances, anticipating that he will closely follow the advice of Mr Kleynhans and adhere to whatever course of therapy Mr Kelynhans proposes.

Extent of Applicant’s Compliance with Visa Conditions

[ 23 ]Apart from the Applicant’s non-compliance with Condition 8202, the Tribunal is not aware of any other breaches of his visa conditions.

Hardship

[ 24 ]The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification. The psychological impact would also be significant having regard to the Applicant’s current state of mental health.

Applicant’s Behaviour towards Department

[ 25 ]The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. He was responsive to the Department’s NOICC and amended NOICC. He has at all material times been co-operative in assisting the Department towards the resolution of this matter.

Other Visa Holders

[ 26 ]There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

[ 27 ]The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met.

[ 28 ]The Tribunal considers these consequences to be unduly punitive in the circumstances of this case.

International Obligations

[ 29 ]The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

[ 30 ]In all the circumstances, the Tribunal is of view that the preferable outcome in this case is not to cancel the Applicant’s visa.

DECISION

[ 31 ]The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa.

Dr Jason Harkess
Member