TAMANG (Migration)

[2019] AATA 2280

TAMANG (Migration) [2019] AATA 2280 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  PASANG DORJEE TAMANG

CASE NUMBER:  1702963

HOME AFFAIRS REFERENCE:                BCC2017/305751

MEMBER:Lilly Mojsin

DATE:18 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 18 April 2019 at 8:38am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 (Higher Education Sector – breach of condition – not enrolled in a course of study – non-compliance due to circumstances beyond control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 189
Migration Regulations 1994, Schedule 2,

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 February 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 had not been enrolled in a course of study. The issue in the present review is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appealed that decision to this Tribunal, annexing a copy of the Department decision to the application for review.

4. The applicant appeared before the Tribunal on 28 March 2019  to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present review 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.

7. Condition 8202, as it applies in this review, 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).

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

9. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) by email on 2 February 2017 and the notice invited the applicant to respond in writing. No response was received.  The delegate found that the applicant the applicant has not been enrolled in a registered course of study since 23 April 2016 and cancelled the visa.

10. The applicant provided to the Tribunal

    ·certificates of schooling completed in Nepal and a

    ·Confirmation of Enrolment to study a Bachelor of Professional Accounting from Holmes Institute commencing on 27 July 2015 and ending 31 July 2018.

    ·Medical report dated 17 February 2017 from New Vision Psychology that the applicant suffers from an anxiety and/or depressive disorder

11. The applicant’s psychologist stated that

    ·The applicant initially studied at Deakin University in Melbourne. In September 2014, he transferred his studies to Sydney, and enrolled at the Australian Technology and Management College. The psychologist stated that the applicant moved to Sydney for better employment opportunities.

    ·In 2015, the applicant’s studies were interrupted when he was diagnosed with ‘Facial Palsy’ - a condition which paralysed one-half of his face. He reports that he was absent from his studies between approximately February and August of 2015 due to his condition. He was given a medical exemption from his studies for treatment.

    ·He reports he has now fully recovered from the condition. In approximately September of 2015, the applicant recommenced his studies, and transferred to study a Bachelor of Accounting at Holmes College. In April 2016, the applicant reports that he ceased his studies at Holmes College, and has not attended any studies since then. He attributes his absence from his studies due to mental health issues. 

    ·With regard to employment, the applicant reports that he has been working on and off throughout his time in Australia. The applicant ceased his employment during treatment for ‘Facial Palsy’ in 2015. More recently, the applicant has been working as a cleaner at Woolworths for approximately one year. He had to cease his employment approximately three weeks ago due to his visa condition. 

    ·In April 2016, following his medical condition, financial pressures, and deterioration in his significant relationships with family and friends, the applicant reports that he felt emotionally overwhelmed and he ceased attending College because of this.

12. The psychologist recommended that the applicant seek ongoing psychological support to teach him a range of effective stress-management and relaxation strategies, to better manage his stress in the future, Cognitive Behavioural Therapy (CBT), to help identify and manage his unhelpful negative self-talk and relationship counselling, to help better manage his relationships in the future. His mental health would also likely benefit from re-engagement in his studies as re-engagement in long term goals is a strong predictor of positive mental health. With professional support and awareness of stress-management, the applicant is likely to be able to successfully reengage in his studies.

13. The applicant’s statement to the Tribunal:

    I came to Melbourne Australia for my further studies on February 2014 to study Diploma of Accounting leading to Bachelor of Accounting. Due to unfavorable situations of Melbourne such as environment, climate, transportation, lack of employment opportunities, loneliness that had gradually started affecting my studies, I moved to Sydney Australia for betterment and for further studies as I had few friends (childhood friends) residing in Sydney.

    On 2015 after moving to Sydney, I was diagnosed with ‘Facial Palsy’, I had to undergo treatment for around six months which forcefully halted my studies and work for a while. This incident resulted in psychological distress as I felt helpless and embarrassed. Since, I was working on and off I had to manage my time for studies more, I didn’t have much savings plus my father ceased his employment at the same time which definitely affect our financial status including mine and family back home. There was no conditions in my family where I could either ask for financial help for my tuition fees, living expenses and even for my treatment or help them. This situation made me stop having further contacts with my family as each time the conversations with family leads to a discussions regarding financial distress.

    My childhood friends (roommate that time) left our shared accommodation with no discussion or notice before moving out. My medical conditions, financial pressures, relationship deterioration with family and friends triggered my mind so much as I ended up having psychological distress such as anxiety, insomnia, loneliness, and so on. Due to this reasons, I had lost hope on everything in terms of my life, studies, family and friends, hence I ended up not enrolling in a registered course which I was supposed to study.

    My health status as of now it is very much better and my family financial situation is back to normal now. I have been able to make some new friends who are really supportive and assist me with my decisions and help me in any hardships. The major happiness of my life at this stage is my health conditions that has been drastically got better which gave me a light of hope towards new beginning, new life and new path to achieve my career goals.

    Things beyond my control led me to this unfavorable and heartbreaking situation which definitely had a huge impact on my studies, personal and social life. But now I am very much dedicated toward my career goals to continue my studies and establish my career as a professional accountant in future in Nepal. Since I possess responsibilities towards my parents as they have done a lot for me and it will be time returning their favor with my successfully completed Bachelor’s degree of Accounting. My only intention is to continue my studies and complete it and return to Nepal to be with my family and for my career too.

14. At the Tribunal hearing the applicant said that he came to Australia in February 2014 to study a diploma leading to bachelor in accounting. He did not complete the diploma, he changed the college and studies for a bachelors course. He studied the course at Holmes institute. He commenced the course around November 2014. He got Bells Palsey in August 2015, he applied for consideration from the college and he was given a month off from his studies, based on his medical reports. He did not complete any subject and failed the exam.  The exams were held in October 2015. It took him a year to recover and his Confirmation of Enrolment was cancelled and he could not enrol. He went to the migration agent, they suggested he contact the Department who said his visa was to be cancelled. He ceased to be enrolled in a course in October 2016 as he did not pay the fees and he did not attend courses. Asked if he had a medical he said no, he was not aware he needed one.

15. Since he has been in Australia he worked until he got the Facial or Bells Palsey after that he did not work.  His parents are supporting him and sending him money.  Asked why he did not go back home after October 2015 he said he was hoping to get well soon and enrol. His parents have been supporting him since 2015. He went back to Nepal once in November 2015 for 4 weeks and he returned.

    REASONS AND FINDINGS

16. On the evidence before the Tribunal, the applicant, after being granted a student visa, was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

17. 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’

18. The Tribunal has also had regard to matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These are discussed below:

19. The purpose of the student visa is to enable the visa holder to undertake study in Australia. There is no evidence before the Tribunal to suggest that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study. The applicant agreed that he has not been enrolled in a registered course since in October 2016.

20. The Tribunal has considered a medical report dated 17 February 2017 from New Vision Psychology stating that the applicant suffers from an anxiety and/or depressive disorder. The Tribunal accepts that the applicant suffered from Facial or Bells Palsey in August 2015 and he obtained leave of absence for a month. He failed his exams in October 2015 and did not continue with his studies. His Confirmation of Enrolment was cancelled in October 2016 as he had not attended to study and had not paid his fees. Asked if he had obtained a medical report he said that he did not and he was not aware that he needed one. The Tribunal notes that the applicant has consulted a migration agent and therefore is not convinced that the applicant was not aware that he needed a medical report to indicate his medical condition at that time.

21. The Tribunal has also considered the applicant’s psychological report obtained on 17 February 2017 from New Vision Psychology stating that the applicant suffers from an anxiety and/or depressive disorder.

22. The Tribunal considers the breach of condition 8202(2) to be significant as the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa when he ceased studying. But in light of the applicant’s medical condition of anxiety and/or depressive disorder after recovery from Facial/Bells Palsey, the Tribunal weighs this factor in favour of not cancelling the visa. 

23. The applicant states that he has a compelling need to remain in Australia as he hopes to continue his studies. He has paid lots of money in fees and did not want to go back. He now wishes to study a Bachelor of Accounting. The Tribunal accepts that the applicant has not been working and his parents have been supporting him since 2015. The Tribunal has also considered that he has been waiting for the outcome of his appeal and his assertions that his health status is very much better and his family financial situation is back to normal. He has been able to make some new friends who are really supportive and assist him with his  decisions and help him in any hardships.

24. The Tribunal weighs this factor against cancelling the visa.  

25. As for hardship that would result to the applicant, he said that he would lose all the time and money he has put into his education and has not obtained a qualification in Australia. Asked why he could not study in Nepal he said he can but he could not get a proper job as schools in Nepal are not that good and are not recognised anywhere else.

26. He is single, he does not have children. He wants to work and get some experience and study further. He wants to study at Holmes institute again.  His father is a travel agent in Nepal and runs an agency. His mother is a teacher. His parents have spent a lot of money on him.

27. The Tribunal is satisfied that the applicant has truthfully explained his circumstances in which ground of cancellation arose. The Tribunal does not accept that spending money studying in Australia and not obtaining a qualification amounts to hardship. Nor does the desire to obtain an Australian qualification rather than a Nepalese qualification amounts to hardship. Nor does being a single male who wants to work in Australia and get some experience amount to hardship.  Therefore the Tribunal is not satisfied that the applicant would suffer hardship were the visa to be cancelled. The Tribunal weighs this factor in favour of cancelling the visa. 

28. The evidence before the Tribunal indicates that the applicant's non-compliance with the visa condition was due to circumstances beyond his control at the time of his diagnosis and treatment of Facial/Bells Palsey. In light of the psychologist’s report, the non-compliance continued to be beyond his control at the time of cancellation of the visa. The Tribunal weighs this factor against cancelling the visa. 

29. There is no evidence before the Tribunal to suggest that the applicant’s past or present behaviour towards the Department was adverse. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

30. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

31. There are no persons in Australia whose visas would, or may, be cancelled under s140. The Tribunal notes from the decision record that there is no information before the Department that indicates that any other person currently holds a visa because the applicant held his student visa. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

32. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

33. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Lilly Mojsin
    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.