VALENZUELA (Migration)

[2020] AATA 4499

VALENZUELA (Migration) [2020] AATA 4499 (4 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jan Virgil Fredrich Valenzuela

CASE NUMBER:  1719838

HOME AFFAIRS REFERENCE(S):          BCC2017/1995744

MEMBER:David McCulloch

DATE:4 September 2020

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 04 September 2020 at 10:01am

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 – mental health condition – financial difficulties – credibility concerns – no extenuating circumstances beyond the applicant’s control – currently studying – significant hardship to applicant’s partner – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a national of the Philippines, born on 25 January 1992. The visa that has been cancelled was granted on 16 September 2014 for a stay period until 14 September 2017. That visa was subject to condition 8202.

2. On 31 July 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course on 3 December 2016. The applicant provided a response to the NOICC on 4 August 2017.  On 22 August 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

3. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

4. This matter was constituted to a Tribunal Member, who held a hearing on 28 August 2019. The applicant communicated at the hearing in English and was represented by his registered migration agent.

5. The Tribunal Member ceased to be a Member of the Tribunal before a decision was finalised. As a result, the matter was reconstituted to a new Tribunal Member. That Member conducted a further hearing on 11 August 2020 at 9.30am. The applicant communicated in English.

6. The Tribunal exercised its discretion to hold the second hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 Migration Act 1958 (the Act), the visa may be cancelled. This is an application for review of a decision dated 22 August 2017 made by a delegate of the Minister to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Act.

   Did the applicant comply with Condition 8202?

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

   a.be enrolled in a full-time registered course: 8202(2)(a);

   b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and

   c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

11. The applicant provided a copy of the delegate’s decision to the Tribunal, which indicates that he has not been enrolled in a registered course of study since 3 December 2016. In both Tribunal hearings the applicant acknowledged that he had ceased to be enrolled in a registered course.

12. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

13. 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

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

15. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations, provisions in the Act which prevent the person making a valid application without the intervention of the Minister, whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

16. In response to the NOICC, the applicant provided the following statement (not corrected for spelling or grammar):

    Please be informed that I have done four years of Bachelor of Science in Information Technology on April 2013 in the Philippines. I came to Australia in October 2014 to pursue my studies and to sharpen my knowledge for a better future and to achieve my goals.

    I studied Bachelor of Business at Kent Institute for 3 semesters and passed the first 2 semesters but failed the 3rd semester as I did not find it much productive and also because I wanted to enhance my IT skills. Out of frustration I enrolled at Central Queensland University (CQU) for Masters of IT in March 2016. I passed 2 subjects out of 4 subjects. However, in July semester I was unable to pay the tuition due to my personal compelling circumstances which is stated on the Psychologist's Report. Please refer to attached Report for details.

    I have been working as a web developer/all-rounder at  21st Century group since Marth 2017 and 'learning a lot about the business strategies as  well as  how to promote the business by using various digital methods; These new development  have helped me to decide that a Bachelor of Business  Information systems would sufficient to progress my Career further. It is hot necessary to complete a Master of IT to progress my career. Therefore I do not regret that I couldn't continue my studies at CQU however what I repent is those 2 semesters, 12 months period that has been wasted because of my personal compelling circumstances. However, I am glad that AIH would most likely credit those subjects that I have already completed from the Ken Institute Australia.

    I chose Australian Higher Education (AIH) as the college offers Bachelor of Business Information Systems with affordable tuition and located in a convenient location. This college has a good reputation and the campus is very conveniently located in the Sydney CBD for studies.

17. The applicant also provided, in response to the NOICC, a copy of a psychological assessment report by Hamid Dadgostar, dated 1 August 2017, both to the Tribunal and Department. The report stated that the applicant wished to use the psychological assessment to mitigate his non-compliance, and stated that the applicant was concerned about his psychological state and its effect on his academic performance.

18. The report summarises the applicant’s migration history. Mention is made of the applicant suffering anxiety and depression. The report states that the applicant disclosed his family had been facing a crisis, and that he faced unpredictable consequences that were too overwhelming for the applicant. Mention is made of the applicant’s family struggling with his father’s recently developed alcoholism in July 2016, and that this created a lot of fights between the applicant’s parents, and that these became violent at times. It is reported that the applicant’s mother booked his father into rehabilitation, and that the family’s financial circumstances deteriorated during this time. The report states that the applicant’s girlfriend became hostile, and their relationship began to deteriorate during this period. The relationship was broken off and the applicant began having headaches and self-medicating with alcohol. It is noted that the applicant developed sleeping problems and experienced a lack of appetite, and this led to difficulty in concentrating and compromised the applicant’s ability to fulfil his visa’s obligations.

19. The report mentions the applicant’s family history. It is noted that the applicant did not have any traumatic experiences and that there is no history of psychiatric issues in his immediate family. It is stated that the applicant has not engaged in self-harm or had any suicidal thoughts. Mention is made of the applicant’s presentation as depressed with anxious mood, and a lack of insight into his condition. It is reported that the applicant has been overcome with feelings of worthlessness, difficulty controlling his thoughts, a lack of sleep, and appetite loss. It is stated that the applicant felt depressed and could not be with others or in crowded places and therefore could not cope with being at school. The report states that the applicant experiences depressed mood, inability to experience pleasurable emotions, lack of interest in social activities, lethargy, feelings of loneliness, and deficit of concentration. It is stated that the applicant’s anxiety increased following communication from the Department. The report states that the applicant scored 29 on the Kessler-10 Psychological Distress Scale, indicating a moderate level of psychological distress.

20. The report states that the applicant appears to have high levels of clinical depression, and a high level of anxiety associated with adjustment disorder. The applicant continues to experience some of these symptoms. Mention is made of the symptoms arising as a direct consequence of the alcoholism of the applicant’s father and subsequent financial difficulties. It is stated that this was compounded by the breakdown of the applicant’s relationship. Mention is made of the applicant’s prior protective background and peer support, and that this may have caused the applicant to find his situation more challenging and had difficulties continuing his studies.

21. As is clear from evidence in both hearings, the visa was cancelled when the applicant finished a General English course, which ended on 2 December 2016. This course of study was suggested by an agent to fill a study gap.  The applicant had been enrolled in a Master of Information Technology from 7 March 2016, following a period beginning in November 2014 when the applicant started a Bachelor of Business, which he left without completing in April 2016.

22. The applicant indicated in the first Tribunal hearing that he completed his first semester in the Master of Information Technology, passing two units and failing two units. In the first hearing, the applicant indicated that around the end of the first semester (in June 2016) there were family, financial and personal difficulties caused by the applicant’s father in the Philippines developing alcoholism. As a result, the applicant was not able to obtain funds for the second semester. The enrolment in the Master of Information Technology was cancelled on 17 August 2016 as a result of the applicant not re-enrolling in the second semester.

23. The applicant had indicated in the first Tribunal hearing that he had approached the education provider, CQ University, in advance of the third semester (which was due to commence on 7 November 2016) in order to seek re-enrolment in the third semester. The applicant indicates that it was only at this point, for the first time, he was advised that his enrolment had been cancelled. The applicant indicated in both hearings that he never received notification of intended cancellation from the education provider. The applicant indicated that he had wished to re-enrol in the third semester but was told that this was not possible.

24. The applicant confirmed in the second hearing that financial difficulties in relation to the applicant’s father’s alcoholism had resolved by the time the third semester was due to commence and that he was otherwise in a mental state to be able to continue with study from November 2016. As indicated, the applicant enrolled in an English course, which commenced on 7 November 2016 and ceased on 2 December 2016. The applicant indicated in the hearing that in the first half of 2017 he made enquiries seeking to enrol in other courses, but was ultimately not accepted into these. The applicant indicated that during this period he also continued to engage with CQ University requesting that they re-enrolled him in the Master of IT, but they would not do so. The Tribunal asked the applicant if he had any evidence of engagement with CQ University, such as emails, but he indicated that he did not correspond with them in writing, but only in person. The applicant confirmed again in the second hearing that he was in a mental state to have wished to have progressed with study from November 2016, including up until he enrolled in a Bachelor of Business that commenced on 28 August 2017.

25. The Tribunal has credibility concerns with claims by the applicant that financial difficulties caused by his father’s alcoholism were the reason that the applicant’s enrolment in the Master of Information Technology was cancelled on 17 August 2016. While the visa was cancelled on the basis that the applicant ceased to be enrolled in his English course on 3 December 2016, the claimed extenuating circumstances relate to the cancellation of the Master of Information Technology.

26. The Tribunal put to the applicant in the second hearing, pursuant to the procedural requirements of s.359AA of the Act, information obtained by the Tribunal dated 10 July 2020 from CQ University. In that information, the University confirms that the applicant did not enrol in the second semester in the Master of Information Technology. The University indicates that on 2 September 2016, the applicant contacted the University advising them that he had not enrolled in the second semester because he thought this was an optional semester. The applicant was advised that he could apply for readmission in the third semester but there was no evidence of him making any approach in relation to his readmission.

27. The Tribunal indicated to the applicant that this information was relevant because it provides a different explanation as to why he did not re-enrol in the second semester, and fails to indicate that there were financial or mental health difficulties caused by family problems. The information is relevant because it contradicts the applicant’s claim that he was told that he could not re-enrol in the third semester. It would also implicitly contradict claims that the applicant made multiple contacts with the education provider in the first half of 2017 seeking re-enrolment but being denied re-enrolment. The Tribunal indicated to the applicant that the consequence of relying on this information would be to draw adverse inferences as to his explanations for lack of study and non-enrolment, therefore being adverse to the applicant in relation to the exercise of the Tribunal’s discretion.

28. The applicant elected to respond to these issues following the hearing in writing. In response, the applicant indicated that he thought that he only needed to do two semesters but that it was his choice as to which semesters he did. This explains the applicant not enrolling or attending the second semester, which was in fact compulsory.

29. The Tribunal maintains its credibility concerns because this is a different explanation than has previously been provided by the applicant as explaining his non-enrolment and attendance in the second semester.

30. In his response, the applicant has made the claim that when he made enquiries of the education provider in terms of wanting to re-enrol, no one got back to him. Again, this is a different explanation than that elsewhere provided by the applicant that he was told by the education provider that was not able to re-enrol.

31. Compounding these credibility issues in relation to the applicant is a disconnect between the psychologist’s report outlined above dated 1 August 2017 and what the applicant had indicated in the second Tribunal hearing in relation to his capacity to study and enrol from August 2016 and in the period immediately following the psychologist’s report.

32. The psychologist’s report makes reference to not insignificant mental health hurdles facing the applicant in the past and presently, which are claimed to have adversely affected his ability to have enrolled and studied during relevant periods, as outlined in the NOICC. However, as clearly indicated by the applicant in the first half of the second hearing, there were no claimed impediments, relating to his financial or mental health or otherwise, to the applicant studying from around November 2016. In addition, in the first half of the second hearing the applicant indicated that he was in a position to progress with his studies in the first half of 2017 but was unable to progress with studies because education providers would not accept him, and CQ University would not allow him to re-enrol in the Master of Information Technology.

33. The Tribunal put to the applicant in the second hearing that there seems to be a disconnect between the applicant’s evidence to the effect that he was in a position to study from November 2016, and the psychologist’s report of August 2017, indicating that there were not insignificant past as well as current mental health issues. As the applicant had indicated in the hearing that he was fit to study from November 2016, this would undermine claims that financial or mental health issues were a barrier to the applicant studying and enrolling after his enrolment in his English course was cancelled on 2 December 2016. The Tribunal also put to the applicant that his claimed mental health status in August 2017 did not seem to be consistent with the applicant being enrolled in a Bachelor of Business later in August 2017.

1. In response, the applicant then changed his evidence to say that there were in fact mental health issues that he was suffering from in November 2016. The applicant indicated that, whilst he was seeking to re-enrol in the Master of Information Technology at this point in time and following, and he was attempting other enrolments in the first half of 2017, in fact, despite this desire, mental health issues were impeding his ability in this respect.

2. The Tribunal is not satisfied with this explanation. The applicant was quite clear on multiple occasions in the first half of the second hearing that there were no personal impediments to him studying from November 2016 and through the first half of 2017. These statements were not qualified in any way by claims that the applicant was in fact suffering mental health issues which were a practical impediment to studying.  The Tribunal considers that the contrary indication by the applicant, as indicated by him after being reminded of the psychologist’s report in August 2017, was a manufactured claim to explain the psychologist’s report.

3. Whilst the Tribunal does not dispute the diagnoses having been made by the psychologist, the Tribunal is not satisfied that mental health issues were the reason why the applicant did not progress with enrolment and study, apart from the English course, from November 2016 until the middle of 2017.

4. The opportunistic nature, from the applicant’s perspective, of the psychologist report is apparent not only from the applicant’s own contradictory evidence in the second hearing and the above-mentioned information having been provided to the Tribunal by CQ University concerning the reasons for the applicant’s non-enrolment, but from the lack of surrounding or follow-up medical treatment obtained by the applicant.

5. The applicant indicated in the hearing that he had no other treatment for his claimed not insignificant mental health conditions apart from the one consultation with the psychologist. It is clear that there had been no prior help sought during the period in which the mental health issues are claimed to have emerged in the middle of 2016, or follow-up treatment following the initial appointment with the psychologist. The Tribunal put to the applicant in the hearing that it did not appear readily consistent with the psychologist’s diagnosis at the beginning of August 2017 that the applicant would have been in a position to have commenced the Bachelor of Business later in August 2017. The applicant responded that the mental health conditions had remained but have become milder, enabling him to start the Bachelor of Business.

6. Given the various credibility issues outlined, the Tribunal is not satisfied that financial and mental health issues suffered by the applicant were the reason why the applicant ceased enrolment in the Master of Information Technology in August 2016 or why he was not enrolled in a registered course from 3 December 2016 until August 2017. The Tribunal is therefore not satisfied that financial and mental health conditions were extenuating circumstances beyond his control that explain his lack of study and enrolment.

7. The Tribunal explored with the applicant in the second hearing the hardship that he would face if the visa remained cancelled and any compelling reasons he has to remain in Australia. The applicant indicated that a hardship would be an inability to complete his current course of study.

8. It is clear from government records and the applicant’s evidence in the second hearing that he has progressed with study since the visa was cancelled. The applicant was enrolled in a Bachelor of Business from 28 August 2017, for which enrolment was cancelled on 18 February 2019 when there was a notification of cessation of studies. The applicant was thereafter enrolled, on 27 August 2019, in an Advanced Diploma of Telecommunications Network Engineering. This course is due to be completed in October 2021. The applicant has provided evidence of progression in this course, albeit indicating that there was an interruption in study and he did not pass some units because of the COVID-19 pandemic and commitments by the applicant because of a four-month-old baby. The applicant indicated that he is currently engaged in the fourth semester of the course and on track to complete it in 2021.

9. The Tribunal accepts that the applicant has made a degree of progress in the Advanced Diploma of Telecommunications Network Engineering and that there would be a hardship to him if he is not able to complete this course.

10. The applicant has indicated that a further hardship if the visa remains cancelled will be a disruption to his plans and those of his family unit. The applicant indicated that he is married to a Filipino citizen who is in Australia on a student visa and that they have a four-month-old child (who is not an Australian citizen). The applicant’s partner is undertaking a culinary course, which he said is due to end in 2020. If the applicant has to return to the Philippines because his visa remains cancelled, then his wife and child will be compelled to return to the Philippines with the applicant.

11. Documentary evidence was provided following the second hearing in relation to the study status of his partner, Twinke Serrano Dela Pena.  That information confirms that the applicant and Ms Dela Pena are married and have a child born on 17 March 2020.  The information confirms that Ms Dela Pena is currently studying a Diploma of Hospitality Management, which is due to be completed on 16 January 2022 and that she was thereafter enrolled in an Advanced Diploma of Hospitality Management. Evidence also indicates that Ms Dela Pena has successfully completed a Diploma of Social Media Marketing, with the diploma being issued on 9 August 2019.

12. In the applicant’s written statement provided following the second hearing, he indicates that there will be a significant hardship for his partner if the visa remains cancelled because it will mean that she will be in Australia with the child without the support of the applicant. It is alternatively indicated that it will be traumatic for his partner if he takes the child to the Philippines without the child’s mother. This will also not be good for the child.

13. The Tribunal accepts a degree of hardship to the applicant if his visa remains cancelled in terms of an exclusion period from being able to apply for other visas.  The Tribunal also accepts that if the visa remains cancelled, the applicant could be an unlawful noncitizen and be subject to immigration detention.  However, the Tribunal considers that the applicant would maintain eligibility to apply for a bridging visa to make his status lawful while he makes arrangements to leave the country.

14. The applicant indicated in the second hearing that he has no fear of persecution or significant harm on return to the Philippines.

15. The Tribunal weighs competing discretionary factors. Significantly adverse to the applicant is the fact that the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control in terms of the applicant’s explanation for his failure to be enrolled in the registered course. The Tribunal does not consider that the applicant has been candid with either the Department or the Tribunal.

16. In the applicant’s favour is the fact that the applicant is currently engaged in a course of study and that there will be hardship to the applicant in terms of not being able to complete this study if the visa remains cancelled. Most significantly, in terms of hardship, is the hardship that will face the applicant’s family unit, particularly his partner, if the visa remains cancelled. This will either result in the applicant’s partner returning to the Philippines with her husband and the child without completing her study. This would be a hardship to her. Alternatively, if she remains in Australia with the child and without the applicant, that will create significant difficulties in her being able to continue with her studies and care for the child without the applicant’s support. The Tribunal also considers significant hardship to the family unit if the child returns to the Philippines with the applicant, without the child’s mother.

17. The Tribunal does not wish to diminish the adverse impact of the applicant making untruthful claims as to extenuating circumstances for not being enrolled in a registered course. There would need to be quite significant countervailing discretionary factors for the Tribunal not to exercise its discretion to cancel the visa.

18. However, considering the fact that the applicant is currently studying, together with the very significant hardship that the Tribunal considers that the cancellation of the visa would inflict upon the family unit, particularly upon the applicant’s partner, by threatening her continued studies in Australia, the Tribunal is satisfied on balance that there are countervailing discretionary factors in this case in favour of the Tribunal not exercising its discretion to cancel the visa.

19. This has been a finely balanced decision, which could easily have gone the other way for the applicant. The decision that has been made is due to the combination of the applicant currently studying and the nature of the family unit and the study of the applicant’s partner. The applicant needs to be put on notice to be scrupulous in adhering to visa conditions.

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

    DECISION

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

    David McCulloch
    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.