Thapa (Migration)

[2019] AATA 2359

Thapa (Migration) [2019] AATA 2359 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bijay Bikram Thapa

CASE NUMBER:  1709890

HOME AFFAIRS REFERENCE(S):           BCC2017/789354

MEMBER:Michael Bradford

DATE:26 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 June 2019 at 9:13am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – depression – possibility of a relapse in mental health – issues with education provider – career plans – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

Background-applications, some evidentiary aspects and procedural matters

1. This is an application for review of a decision 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 2 May 2017 on the basis that the applicant had not complied with condition 8202 because he had not been enrolled in a registered course of study since 19 February 2016. The issues on this review application are whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On 30 March 2017 the Department of Immigration and Border Protection sent to the applicant a Notice of Intention to Consider Cancellation of his visa (the NOICC) inviting him to comment on a possible breach of condition 8202(2)(a) arising from his non-enrolment and to give reasons why his visa should not be cancelled.

4. The applicant responded to the NOICC on 13 April 2017 by forwarding an email to the Department to which was attached a typed letter bearing that date in which he sought to explain why his visa should not be cancelled together with the other documents referred to in the email, namely two medical reports, one from the UTS Health Service and the other from New Vision Psychology, and an Earthquake Victim Identity Card which related to the damage caused to his parents’ house by the earthquake in Nepal in late April 2015.

5. On 2 May 2017 the applicant was notified by the Department that his visa had been cancelled for breach of the condition.

6. On 8 May 2017, he lodged his review application with the Tribunal together with supporting material, namely a letter to the Tribunal of that date, a copy of the Department’s decision and the other documents which he had sent to the Department in response to the NOICC.

7. On 29 May 2019 the applicant was invited by letter to appear before the Tribunal to give evidence and present his case. In this letter he was also asked to provide all of the documents on which he intended to rely within 7 days.

8. The applicant responded to that invitation on 4 June 2019 by returning a completed hearing response form to the Tribunal.

9. On 11 June 2019 the Tribunal obtained from sources other than the applicant a Confirmation of Enrolment (COE) from the Department of Education and Training in relation to a Certificate IV in Commercial Cookery at Duke College, the terms of which will be considered later in these reasons.

10. On 12 June 2019 the Tribunal also obtained from sources other than the applicant a PRISMS record and Movements Details the relevant information in which will also be considered.

11. On 14 June 2019 the applicant appeared at the hearing. A Nepalese interpreter was not required and the applicant gave his oral evidence in English without apparent difficulty. No additional documents were provided. Relevant details in the PRISMS and Movements records were put to the applicant under Sec 359A, discussed with him and were not relevantly in dispute.

12. For the reasons which follow, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    The Department’s decision

13. The delegate’s finding that the applicant had not been enrolled in a registered course of study since 19 February 2016 was based on information in the PRISMS record which was not relevantly in dispute.

14. Accordingly the delegate was satisfied that the applicant had not complied with condition 8202(2)(a) as and from that date and that a ground for cancellation of his visa under Sec 116(1)(b) of the Act had consequently been made out.

15. As to whether the visa should be cancelled, the delegate considered the purpose of the applicant’s travel to and stay in Australia, the extent of his non-compliance with condition 8202, the degree of hardship which would be caused to him and his family in the event that his visa was cancelled, the circumstances in which the ground for cancellation arose and his behaviour towards the Department. After taking into consideration other factors which were regarded to be of no or little weight, the delegate was satisfied that the grounds for cancelling the visa outweighed the reasons for not cancelling it. Accordingly, the applicant’s visa was cancelled.

16. The Department’s decision also recites that the visa was due to expire on 30 August 2017. Although a copy of the Visa Grant Notice is not among the documents in the Department’s file, the Tribunal will proceed on the basis that the visa expired on that date.

    The issues on the review application and the Tribunal’s approach to them

17. The NOICC recites that the subject visa is a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa, that it was granted to the applicant on 4 October 2013 and that one of the conditions on which this visa was granted was condition 8202. The Movements record confirms these details.

18. At the hearing of his review application before the Tribunal, the applicant did not dispute that at the time of the delegate’s decision he had not been enrolled in a registered course of study as from 19 February 2016 although he sought to explain this on the basis that UTS had prevented him from enrolling in another course by not releasing him from a Foundation Studies course.

19. That being so, it will be necessary for the Tribunal to consider two issues in this review; firstly, whether the applicant has not relevantly complied with condition 8202 and, secondly, if the applicant has breached that condition, whether his visa should be cancelled under Sec 116(1)(b) of the Act.

20. Of course, the Tribunal must conduct this review afresh having regard to the evidence before it whether or not that evidence was before the delegate.

21. In this case, almost all of the evidence before the Tribunal was before the delegate, the only differences being the letter of 8 May 2017 referred to in paragraph 6 of these reasons, which is really nothing more than a condensed version of his earlier letter to the Department, the updated PRISMS record, the COE for the Certificate IV at Duke and the Movements record.   

    Evidence and findings

    Is the power to cancel the visa enlivened-has the applicant breached condition 8202?

22. At the hearing, the applicant conceded that he had not been enrolled in any registered courses of study between 19 February 2016 and 8 June 2018, the latter date being the date on which he enrolled in the cookery and hospitality courses. The date of his enrolment in these courses is confirmed by the data in the PRISMS record and by the date on which the COE for the cookery course was created.

23. Thus, it would appear from that evidence that the applicant was not enrolled in a registered course of study for a closed period of about 2 years and 4 months.

24. The PRISMS record reveals, among other things, that the cookery course had a start date of 23 July 2018 and has an end date of 19 January 2020. It also indicates that the applicant is currently enrolled in a Diploma of Hospitality Management at Duke College due to commence on 20 January 2020 and finish on 19 July 2020.

25. The data in the PRISMS record further confirms that his enrolment in the Foundation Studies course was cancelled on 19 February 2016 for unsatisfactory attendance. The applicant conceded as much in his oral evidence, although he said that the cancellation arose because of unsatisfactory progress. He also conceded that he was made aware of the cancellation on or about that date.   

26. At the hearing the applicant sought to explain his subsequent non-enrolment on the basis that UTS did not release him from the Foundation Studies course thereby effectively preventing him from enrolling in another course. The Tribunal does not accept this explanation for various reasons. Firstly, and most importantly, a release was unnecessary in circumstances where the applicant’s enrolment in that course had been cancelled on 19 February 2016. As from that date, there was nothing to release the applicant from. Secondly, he made no claim to this effect in his 13 April 2017 letter to the Department, nor did he make it in the 8 May 2019 letter to the Tribunal. It is mentioned in the New Vision Psychology report as having been reported to the author of that report by the applicant but is otherwise unsupported. Absent any contemporaneous documentary evidence or other satisfactory corroborative material, the Tribunal does not accept that the applicant was prevented from re-enrolling as he claims to have been. Thirdly, the claim lacks sufficient detail in any event in the absence of any evidence to establish what the proposed “alternate studies” were in which he had attempted to enrol and to explain why it was that he was able to enrol in the cookery course in June 2018. The Tribunal is not bound to investigate these aspects of his case and declines to do so.

27. The Tribunal is unable to see how, in these circumstances, any act or omission on the part of UTS could possibly have contributed to the applicant’s subsequent non-enrolment up to the date on which he enrolled in the cookery course.

28. This being so, the breach by the applicant of condition 8202(2)(a) was within his control, is clearly established on the evidence and the power to cancel his visa under Sec 116(1)(b) is enlivened.

    Should the visa be cancelled?

29. Having found that the applicant has not complied with a condition of his visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or the Regulations which must be considered in the exercise of this discretionary power by the Tribunal. Obviously, the Tribunal must have regard to the individual circumstances of each case, including in this case the matters raised by the applicant together with other matters referred to in the Department’s Procedures Advice Manual (PAM3) under the heading “General Visa Cancellation Powers”. These matters will be specifically addressed later in these reasons.

30. Before coming to the relevant detail of the applicant’s evidence in relation to this issue the Tribunal notes that he appeared to give his oral evidence in a careful and considered fashion, seemed to be doing his best to accurately recollect important detail, to inform the Tribunal of the circumstances in which the breach occurred and to provide other information in relation to the case.

31. The Tribunal cannot regard the applicant’s demeanour at the hearing to be a particularly reliable indicator in this case given his attempts to blame UTS for his prolonged failure to secure enrolment in another registered course of study. This was a somewhat disingenuous forensic position for him to adopt in the circumstances of this case and it does not reflect well on him for having done so. More importantly, certain aspects of his evidence are not supported by his own documentary case, more particularly the opinions of his medical specialist from New Vision Psychology, namely Johan Crouch. The Tribunal will return to consider this report shortly.

32. That said, the applicant did readily make a number of frank admissions at the hearing which do enhance his overall credibility as a witness and the Tribunal is prepared to accept his evidence, at least on certain aspects of his case, unless it is inconsistent with or not supported by the independent records and the medical reports or is otherwise uncorroborated on matters where corroboration is called for. Ultimately, most of the critical facts in this case emerge clearly enough from the documentary material.

33. The applicant was born in Nepal in 1991 and is currently 27 years of age. The Movements record indicates that he arrived in Australia on 9 October 2013, that is to say shortly after he had obtained his visa.

34. In his letter to the Tribunal, the applicant said that he had come to Australia from Nepal to study nanotechnology, a subject in the fields of science and medicine which apparently involves the study of atomic or molecular matter, but found that studying abroad was more challenging than he thought it would be. He enrolled in a Diploma of Science at UTS, says that he did quite well in the first semester but began to worry about the content and where he was heading. After taking advice from a counsellor he decided to switch to architecture but had to first enrol in a Diploma of Design to undertake the Bachelor’s degree at UTS and he found the design course also not to his liking. He became anxious and disinterested in his studies which led to him failing 2 out of 6 subjects. He then began to worry more deeply about what he was doing in Australia, whether he was wasting his parents’ money and became more insular, withdrew from friends and had less contact with his family. A student advisor at UTS suggested that he seek medical treatment, which he did. The Tribunal accepts all of this evidence.

35. The report from the UTS Health Service confirms that the applicant first sought medical help for his depressive illness in December 2014 and again in January 2015 but no medication was prescribed at that stage, apparently.  

36. The applicant goes on to say in his letter that he re-enrolled in the Diploma of Science with the idea that he would do a Bachelor of Nursing but he had difficulties with the content of the diploma and failed another subject. He saw his advisor again and took a break from study as he was beginning to feel helpless.

37. PRISMS contains data to the effect that he was granted a deferment from the Diploma on compassionate grounds on 19 February 2015 and, on 12 March 2015, he went back to Nepal to see his family, returning to Australia towards the end of that month to resume his studies in that course. The Movements record confirms these travel details.

38. A major earthquake struck Nepal in April 2015 causing massive casualties and property damage. His parents’ house was completely destroyed and their business affected. There is a certificate in the form of an Earthquake Victim Family Identity Card which confirms the loss of their house and other compensatory aspects arising from it.

39. There is evidence from the applicant, much of which is confirmed in the New Vision report, that he was very anxious about his family after the earthquake as he was unable to contact them for a few days. He then found out that his family was safe but their house had been destroyed. In the months which followed the business was to incur significant losses, apparently, and they were unable to meet the applicant’s tuition fees. Extensions of time were sought from UTS, apparently by the applicant but with assistance from his advisor, to enable them to defer the fees and, according to the evidence in the report, this further impacted on the applicant’s negative thought pattern and his belief that he was wasting their money. This led to a heightening of his distress, deteriorating symptoms including sleep disturbance, loss of concentration, suicidal thoughts and episodes of self- harm during the second half of 2015.

40. According to the report from the UTS Health Service, the applicant sought further treatment for his depressive illness in November 2015 at which time he was prescribed anti-depressant medication. The applicant said that he took this medication and the Tribunal accepts that he did. The report also states that his condition would have affected his ability to study at that time and the Tribunal accepts that it would have done so.

41. The Tribunal finds that these events would have been sufficient to cause a major depressive condition in the applicant during the second half of 2015 and that they would have seriously compromised his capacity to study during that period.  

42. In the New Vision report, the author notes that following the cancellation of the Foundation Studies course in February 2016 the applicant recognised that he needed to make changes in his life to manage his mental issues and it provides some information about what he did to improve his medical condition during 2016, including increasing his social interaction, exercising and reconnecting with activities which he had previously enjoyed, such as reading and sketching. At the time this report was written, in April 2017, the applicant had reported that his symptoms of depression and anxiety had substantially decreased but that, if he is unable to continue his studies in Australia, he was fearful of relapsing into severe depression and anxiety because he would find it very difficult to gain entry to a university in Nepal as it had been more than 5 years since he had left school.

43. Under the heading “Assessment and Treatment Recommendations’, after referring to some test results and the history in the UTS Health Service report, the author of the New Vision report accepts that the applicant had major depression and anxiety throughout the period from late 2014 to about mid-2016 and that this would have impacted significantly on his studies during that period. According to the report, this led to the cancellation of the Foundation Studies course in early 2016 and a consequent deterioration in his condition. The author goes on to say that the steps which the applicant took to improve his mental health in 2016 and the removal of other stressors, such as the recovery of his family’s finances during that year, had a positive effect and that the applicant was ready to re-engage with his studies and recommends that he do so as this would have a significant bearing on his mental health. The author also accepts that it would be possible for the applicant to relapse into depression if he were unable to continue with his studies.

44. On the basis of that evidence, which the Tribunal also accepts, the applicant probably remained unable to study effectively during the second half of 2016 but he had sufficiently recovered to resume his studies by the end of that year, at the latest.

45. This being so, the applicant was unenrolled for a period of at least 18 months, from the end of 2016 to June 2018, in circumstances where he was able to study. Moreover, he has not explained to the Tribunal why he did not procure, or seek to procure, a fresh enrolment in a registered course until June 2018. As the Tribunal has already rejected his explanation that UTS prevented him from doing so by refusing to release him from the Foundation Studies course, this long unexplained absence from study is, in the Tribunal’s view, a very weighty if not overwhelming adverse factor when it comes to considering the circumstances in which the breach of condition 8202 occurred and the weight to be accorded to it.

46. Given that the applicant was on medication as from mid-November 2015, that he had taken effective steps to improve his condition after February 2016 and that other stressors in his life were becoming less influential during that year, the Tribunal is quite unable to see why the applicant did not re-engage with his studies by at least the end of that year. That he did not do so brings into question his intentions as from that stage and the purpose of his stay in Australia since late 2016. These concerns are heightened by the fact that the applicant himself has given oral evidence to the effect that he enrolled in the cookery and hospitality courses in June 2018 because he had no real option. These courses are quite inconsistent with his stated academic interests and with his study program during the period from October 2013 to February 2016.      

1. Although changes to an academic program are to be expected and allowances made for them in an appropriate case, the Tribunal has no evidence from this applicant to explain his enrolment in these two courses, or at least none which can be seen as furthering legitimate goals. The applicant gave oral evidence to the effect that he had been working here on a casual basis in a take away food out-let but this was not otherwise supported by any documentary evidence and is too vague to be of any real evidentiary value. The disparate nature of his academic program in Australia, even when viewed in the light of his medical issues, is cause for additional concern.

2. Nor does the Tribunal have any evidence to explain why he could not have undertaken them in Nepal, apart from his uncorroborated assertion that he would find it difficult to gain entry to a university there, a contention which the Tribunal, for reasons to be given later, cannot accept.

3. On the basis of the evidence which the Tribunal is prepared to accept, and given the applicant’s unexplained absence from study for a period of about 18 months, the Tribunal is unable to find that he has remained in Australia since late 2016 in order to undertake a course or courses of study as a means of furthering a genuine interest in cooking or hospitality, pursuing legitimate career objectives or enhancing employment prospects in those areas. The Tribunal does not accept his oral evidence that he is really interested in pursuing a career in that sector on his return to Nepal and finds that he has been motivated to enrol in these two courses primarily to avoid having to return to his home country and face his parents without having obtained an academic qualification. 

4. In the New Vision report, the author recommends that the applicant obtain ongoing professional psychological support to assist him with relapse prevention and notes that, with it, he would become more resilient to the onset of mental illness and more likely to successfully re-engage with his studies.

5. The Tribunal notes that the applicant has given no evidence, either before the Department or in support of his review application to the Tribunal, on whether he has at any stage acted on that recommendation and taken those precautions and infers from the absence of this evidence, taken in conjunction with other evidence set out below, that he has not in fact done so.

6. The Tribunal also notes that the UTS Health Service report records that the applicant did not follow up his November 2015 consultation during 2016, as he apparently had been advised to do, because he had left UTS and thought that he was unable to do so. The Tribunal cannot accept this explanation in circumstances where he went back there on 10 April 2017 for the purpose of obtaining the UTS report, no doubt in response to the NOICC.    

7. In his April 2017 letter to the Department, the applicant says that, although he was “not completely OK”, he was stronger, more confident and positive and that, if he was given the chance, he felt that he could make his and his family’s dream come true, that he really wanted to study and graduate in Australia. He goes on to record his understanding that most of the courses in Nepal require a high school certificate which is not more than 5 years old and he fears that, because he obtained his HSC prior to his arrival here in 2013, he will be unable to enrol in the “course of my desire”, a course which he does not identify in the letter.

8. To the extent to which that letter might be read as suggesting that he has been unable to re-engage with his studies since late 2016, the Tribunal does not accept this evidence in the absence of corroborative material from his medical experts.

9. In his May 2019 letter to the Tribunal the applicant more or less reiterates that evidence, says that he is now confident he can go very well in his studies and that he did not want his family’s hope to “turn to ashes” and their devotion to his career “go in vain”.

10. In relation to the issue of hardship, the Tribunal does not accept that the applicant would be unable to gain entry to a university in Nepal in the event that his visa remains cancelled. Corroborative evidence to this effect has not been led in the applicant’s review case and the Tribunal is not prepared to accept a self-serving assertion from him to this effect. Certainly, the Tribunal does not accept that it would be difficult, let alone impossible, for him to undertake a course of study in cookery or hospitality in his home country in the event that his visa remains cancelled.

11. The Tribunal readily accepts that the applicant and his family, particularly his parents, will be disappointed with an outcome which results in his return to Nepal empty handed, as it were, and that a good deal of their financial and emotional resources will have been wasted as a result but these are things which the applicant has largely brought on himself given the lengthy and unexplained period during which he was not enrolled in a registered course of study in circumstances where he could have been academically productive. Thus, the Tribunal gives these factors little weight.

12. The Tribunal takes into account in the applicant’s favour the possibility of a relapse in his mental health in the event that he can no longer continue with his studies in Australia but, for various reasons, it gives this factor little or no weight. Firstly, the New Vision report in which this possibility is recognised was written more than 2 years ago and, in the absence of an updating report, the Tribunal cannot regard it to have any real continuing significance on this review application. Secondly, the applicant in effect said in his May 2017 letter to the Tribunal that he had completely recovered from his mental issues and no oral evidence was given by him at the hearing to suggest otherwise. This being so, the prospect of a relapse now is more remote and speculative than it was then. Thirdly, he does not appear to have acted on the recommendation of his own medical adviser in April 2017 to engage ongoing professional medical support presumably because he feels he does not need support of this kind.

13. As to the extent of compliance with visa conditions, the Tribunal has found that the applicant was not enrolled in a registered CRICOS course for a period of about 2 years and 4 months, from February 2016 to June 2018, but with extenuating circumstances until in or about late 2016. There is nothing before the Tribunal to suggest that he has breached any other visa condition. The Tribunal expects that a visa holder will generally comply with the conditions of the visa. Given that the breach in this case cannot be described as a merely technical one, the Tribunal does not place a great deal of weight on the fact that the applicant may have complied with other visa conditions.

14. As to the past and present conduct of the applicant towards the Department, there is nothing before the Tribunal to indicate that he has not cooperated with the Department in his dealings with it since receiving the NOICC, and he has cooperated with the Tribunal in providing information and responding to the Tribunal’s invitations. The Tribunal gives these matters some weight in his favour.

15. As to whether there are mandatory legal consequences which would attach to a cancellation decision, the Tribunal considers it unlikely that the applicant would be detained if his visa remains cancelled in these circumstances. The Tribunal notes that he would have a limited period of time in which to leave the country and accepts that he would be temporarily barred from obtaining a further visa for entry into Australia. However, this is due to the operation of the migration laws in Australia and is a result of his own actions. The Tribunal gives this consideration minimal weight in his favour.

16. The Tribunal is not satisfied on the evidence before it that any international obligations would be breached as a result of the cancellation.

17. As to whether there are any other relevant matters, the Tribunal notes that the applicant’s visa expired on 30 August 2017 and that if his visa cancellation is set aside he would likely have to apply for a further visa to lawfully remain in Australia and complete his studies here. Thus, in this event, he would have to apply for and meet the criteria for the grant of a new Student subclass 500 visa.

18. The Tribunal accepts that the applicant feels confident that he would be able to complete the courses in which he is currently enrolled if given the opportunity but it does not accept that they have been selected to further his legitimate career ends or aspirations. Again, these are weighty adverse factors to be taken into account on the issue of whether his visa should be cancelled.

19. Overall, the considerations set out above weigh heavily in favour of the Tribunal exercising its discretion to affirm the decision to cancel the applicant’s visa.

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

    DECISION 

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

    Michael Bradford
    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.