Wan (Migration)

[2020] AATA 3703

Wan (Migration) [2020] AATA 3703 (20 March 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Man Hin Wan

CASE NUMBER:  1922325

DIBP REFERENCE(S):  BCC2019/2603429

MEMBER:D Triaca

DATE OF DECISION:  20 March 2020

DATE CORRIGENDUM

SIGNED:13 August 2020

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

At paragraph 58, the applicant is referred to as a ‘citizen of India’. This should be corrected to ‘citizen of Malaysia’.

Dominic Triaca
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Man Hin Wan

CASE NUMBER:  1922325

HOME AFFAIRS REFERENCE(S):          BCC2019/2603429

MEMBER:D Triaca

DATE:20 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 20 March 2020 at 3:25pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course ceased – unsatisfactory course progress – medical issues – applicant misunderstood enrolment cancellation – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 August 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

   Student Visa Cancellation – Application for Review

2. The applicant is a citizen of Malaysia and is 21 years old. He seeks review of a decision made by a delegate fo the Minister for Home Affairs (the delegate) on 9 August 2019 cancelling his Subclass 500 student visa pursuant to s 116(1) of the Migration Act 1958 (Cth)(‘the Act’).

   Original Visa Grant

3. The applicant’s visa was granted on 20 March 2017. It was granted because the Minister had determined that he met the primary criteria for a grant of a student visa, as set out in the Migration Regulations 1994 (Cth).

4. The visa had an original expiry date of 15 March 2020 before it was cancelled. It provided for approximately three years during which the applicant would be permitted to reside in Australia for the purpose of full time study.

5. The visa the subject of the current application is the applicant’s second student visa. He first arrived in Australia in 2015 on a student visa.

   Reasons for Cancellation.

6. The applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the applicant had not complied with a condition of the student visa. Specifically, the delegate found that the applicant had failed to comply with that condition of the visa which required him to maintain enrolment in a registered course of study.

7. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the applicant’s visa ought to be cancelled.

8. The delegate’s reasons are set out in the in a decision record (delegate’s decision). A copy of that decision was provided to the Tribunal by the applicants and has been considered by the Tribunal.

9. The applicant appeared before the Tribunal on 30 January 2020 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent and an interpreter.

   Issues for Determination by the Tribunal.

10. The first issue requiring consideration by the Tribunal is whether the ground of cancellation under s 116(1)(b) of the Act is made out, namely whether the applicant did not comply with a condition of his visa. If the Tribunal determines that a ground for cancellation is made out, the second issue requiring consideration is whether the applicant’s visa ought to be cancelled.

    
    Tribunal’s Determination.

11. The Tribunal has concluded that the decision to cancel the applicant’s visa ought to be affirmed in this case.

    GROUND FOR CANCELLATION

    Applicable Law

12. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations (Cth)(‘the Regulations’), when the visa was granted.

13. Condition 8202(2)(a) attaches to all student visas and creates a continuing obligation for the duration of the visa. It requires the visa holder to maintain enrolment in a registered course of study.

14. The imposition of Condition 8202(a) draws attention to the fact that student visas are issued for the specific purpose of study. The visa holder is legally obliged to adhere to that purpose for the duration of their stay in Australia. Whilst the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study,  if they cancel their enrolment in one course they must immediately make arrangements to enrol in another. In that regard, condition 8202(2)(a) is one of many student visa conditions designed to ensure that Australia’s student visa program is not abused.

    Has the Applicant Failed to Comply with Condition 8202(2)(a).

15. In the delegate’s decision record, the delegate identified the period from 16 July 2018 to 9 July 2019 as the relevant period in which the applicant was not enrolled in a registered course. This amounted to more than eleven months during which the applicant was alleged to be in continuous breach of the visa.

16. Prior to cancelling his visa, the Department of Home Affairs (the Department) wrote to the First Applicant by letter dated 4 July 2019, notifying him of its intention to consider cancelling his student visa (the NOICC). The NOICC set out particulars of the matters set out above and put the applicant on notice that the Department was concerned that he may be in breach of Condition 8202 of his visa. The applicant was invited to comment before the Department determined whether his visa should be cancelled.

17. The applicant responded to the NOICC in writing on 10 and 12 July 2019 (Applicant’s NOICC Response). In that response, the applicant did not dispute that he was in breach of condition 8202 of his visa as alleged, although he sought to explain the circumstances giving rise to the breach.

18. The applicant’s evidence before the Tribunal was that the delegate’s finding was true and correct. He confirmed that he had not been enrolled in any registered course of study during the period alleged.

    Conclusion.

19. On the available evidence, the Tribunal finds that the applicant was not enrolled in a registered course of study during the relevant period, being a period in excess of 11 months. The Tribunal finds the applicant breached Condition 8202(2)(a) of his student visa as alleged.

    CONSIDERATION OF DISCRETION TO CANCEL VISA

20. Having found that the applicant failed to comply with a condition of his visa, the Tribunal must proceed to consider whether his visa should be cancelled.

    Relevant Factors

21. 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’.

22. The matters ought to be considered are specifically listed in the PAM3 as follows:

    a.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);

    b.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;

    c.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;

    d.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;

    e.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);

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

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

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

    i.         any other relevant matter.

    Circumstances giving rise to the Non-Compliance with Visa Condition.

23. In addition to the delegate’s decision, the applicant provided the Tribunal with written submissions prepared by his Migration Agent and further documentation in support including certified copies of the applicant’s VCE results and ATAR, evidence of the applicant’s mother’s ultra sound certificate and the applicant’s birth certificate, Psychologist’s report of Dr. Christopher Wong dated 8 July 2019, Confirmation of Enrolment from Newton College in Diploma of Business, and Form 956 Advice by a migration agent. The Tribunal has read and had regard to the documentation submitted.

24. At the hearing the applicant’s migration agent was invited to make any further submissions in addition to the written submission. The migration agent made some oral submissions broadly consistent with the applicant’s evidence and the written submission and those oral submissions have been taken into account.

25. The applicant’s evidence is summarised as follows.

26. He arrived in Australia from Malaysia in 2015 and studied his VCE at Beaconhills College in Berwick. He completed year 11 in 2015 and year 12 in 2016. He attained an ATAR score of 54.10 and was described by his representative as “an average student”.

27. In 2017 he enrolled in and commenced studying a Bachelor of Technology (Computing Studies) at RMIT. He was granted a second student visa to enable him to study the Bachelor Degree. Up until this point, his time in Australia was unremarkable.

28. It is fair to say that his results at RMIT were poor and his enrolment was cancelled due to “unsatisfactory course progress” in July 2018. He attributes his poor performance to his poor English and [a condition] that he suffered due to his [mother’s medical condition] in Malaysia during that time. His evidence was that he was isolated in Australia and his mother simply stopped communicating with him around this time, prior to him becoming aware of her diagnosis, and this led to him experiencing mental health issues. He was also distressed by his Grandmother, in Malaysia, falling ill in November 2017.

29. Following the cancellation of his enrolment, he did not re-enrol in any further course until after he received the NOICC in July 2019. During this period he returned home for approximately 2 months. He says that he was involved in the Planet-shaker Church group and received ‘tutorial help’ from his friends in the Church.

30. Following receipt of the NOICC, he enrolled in a Diploma of Business at Newton College and he provided the Tribunal with a copy of his COE for that course. He says he commenced studying this course but was unable to continue studying following the cancellation of his student visa in August 2019.

31. The applicant’s explanation for the breach primarily revolves around two issues.

32. Firstly, he states that he misunderstood the significance of the letter from RMIT cancelling his enrolment in July 2018. He attributes this misunderstanding to his poor English and also his [condition] but returned in about February 2018. He states that he misinterpreted the letter from RMIT and assumed he could return to study the course after a 12 month period. It appears he interpreted the letter from the college as an “exclusion period” or suspension as opposed to a cancellation of his enrolment.

33. Secondly, he states that he [suffered from a condition] during the relevant period. He provided a report from Dr. Christopher Wong which explains that he met with Dr. Wong on approximately 6 occasions between August 2018 and July 2019. He was diagnosed by Dr Wong with a [specified condition]. The Tribunal has read and had regard Dr. Wong’s report dated 8 July 2018.

34. The applicant’s current position is that he hopes to return to study. He has made enquiries in relation to studying a package of courses that will lead to a Bachelor course. He says he has not been able to finalise any study plans until such time as his visa situation is resolved. He hopes to return to Malaysia after the completion of his studies.

35. The difficulty for the applicant is that he has been in breach of his student visa for a considerable period of time and it is only upon receipt of the NOICC, over 11 months after the initial breach, that he took any steps to rectify the issues and return to study.

36. The Tribunal does not accept the applicant’s explanation that he did not study for nearly a year due to inadvertence or ignorance of the meaning of the letter he received from RMIT in June 2018. Even if the effect of the letter from RMIT was that he would be able to return to study after a 12 month break, it does not follow that there was any basis to assume that it followed that the applicant was entitled to remain in Australia, in breach of his student visa, with no consequences.

37. Whilst it is understandable that a young person may misconstrue correspondence written in a foreign language, the Tribunal considers there is no reasonable basis upon which the applicant could, on the strength of one letter from RMIT, have formed the view that he was entitled to remain in Australia for further year on a student visa without engaging in any form of study.

38. The Tribunal considers that in July 2018, it was incumbent upon the applicant to take steps to seek help, alert his course provider to his problems, or alert the Department to his personal situation, or return home until such time as he was in a position to return to study. The applicant did not take any steps to return to study until he was in receipt of the NOICC almost twelve months later. His failure to take any reasonable steps to return to study has resulted in an ongoing breach of his visa for an extended period of time.

39. The caveat on the above analysis is the applicant’s diagnosed mental health issue. The applicant provided the Tribunal with a report from Dr Christopher Wong, Psychologist dated 8 July 2019.

    The Tribunal accepts that the applicant was suffered from [a condition] in accordance with the report and accepts the applicant’s evidence in relation to the illness of his mother and grandmother during 2017 to 2019 period.

40. There are two primary issues to assess in relation to the psychological evidence. First, whether and to what extent, mental health issues contributed to the applicant’s breach of the visa. Secondly, whether the applicant’s issues have resolved and whether he is now in a position to study.

41. It was submitted on behalf of the applicant that mental health issues were of such a nature that the applicant was “unable to comprehend the true extent of his issues and what is needed to be done.” In other words, the Tribunal ought to find that [his condition] led to the applicant’s failure to seek a deferral or take other steps open to him to avoid the initial cancellation.

42. The psychological evidence addresses the applicant’s poor performance at RMIT due to a combination of “poor English comprehension, (and the) compelling and unforeseen situation.” It appears that the reference to a compelling and unforeseen situation refers to [the applicant’s condition], resulting from the diagnosis of illness suffered by his mother and grandmother. In his evidence before the Tribunal, the applicant elaborated that his [condition] was caused also by feeling abandoned by his mother essentially cutting off communication with him in Australia due to her diagnosis, a situation he did not become fully apprised of for some months.

43. Dr Wong continues, “to make the situation worse, he incorrectly interpreted the Exclusion Letter, which RMIT University sent to him via email. He thought that RMIT University excluded him for 12 months and after that 12 month exclusion period he could resume his study.” He later states his “unstable mental conditions caused him to misinterpret the exclusion letter.”

44. The Tribunal accepts that the applicant’s mental state may have contributed to his misunderstanding of the RMIT letter. It is also likely that his relatively poor English also contributed. However, considering the psychological evidence and the applicant’s evidence, the Tribunal considers it falls well short of establishing that the applicant’s mental health issues were such that he was unable to study for an extended period of time or that mental health issues caused him to believe it was acceptable for him to remain in Australia, in ongoing breach of the conditions of his student visa, for approximately 12 months.

45. The following matter weighs against the application. In his evidence, the applicant stated that he had not returned to Dr Wong since the time of the report in July 2019. He said that his Mother had visited him in the latter half of 2019 and he felt his mental health had improved. It was submitted that he was now in a position to return to study.

46. The difficulty for the applicant is that whilst Dr Wong’s evidence was that his mental health issues had “stabilised”, Dr Wong’s clearly stated opinion was that he “requires ongoing support, monitoring and treatment.” On the applicant’s own evidence, he has not sought further psychological support, monitoring or treatment for over six months.

47. The Tribunal considers that the applicant’s position in relation to his mental health is unrealistic. The Tribunal does not accept the situation is that the applicant suffered [a condition] to such an extent during between 2017 and 2019 that he was unable to study in any capacity, yet in 2020 his issues have resolved to such an extent without the benefit of following the recommended treatment of his treating psychologist. This is a bridge too far.

48. Further, the psychological evidence does not suggest that he was unable to study during the second half of 2018 and first half of 2019. The report states that although he did not attend university during this period, “he did not waste his time at all. He received tutorial help to the subjects that he had failed to achieve a pass mark in the past from his friend, Caleb, in the Planet-shaker Church group Southbank which he was a congregate member of the church.” The Tribunal considers this conduct is consistent with an ability to continue studying during the relevant period had he so chosen.

49. The circumstances set out above, the Tribunal finds at the applicant’s non-compliance with his visa conditions was neither extenuating nor beyond his control. This finding weighs significantly against cancelling the visa.

    Purpose of the Applicant’s stay in Australia.

50. The Tribunal accepts that when the applicant arrived in Australia his purpose was to study on a full time basis. This is reflected by the applicant’s initial enrolment and studies successful completion of VCE in 2016. This continued to be the case in 2017 when he enrolled at RMIT.

1. However, by approximately mid-2018, the applicant’s enrolment was cancelled and studying had ceased to be his purpose. His own evidence is that his academic performance at RMIT was poor. He did not engage in any further study for approximately 12 months and the Tribunal finds his purpose for staying in Australia was not studying over that period.

2. Whilst he did enrol in mid-2019, it was only for a relatively short period of time, and occurred in the context of his receipt of the NOICC.

   Extent of Applicant’s compliance with visa conditions.

3. The Tribunal has given consideration to the Applicant’s compliance with other visa conditions. But for the non-compliance with Condition 8202(2)(a) that is now before the Tribunal, it appears that the Applicant has otherwise been compliant with the conditions of visas that have been issued to him. The Tribunal has given this some weight in his favour. However, given the significant period of time during which the Applicant was in continuous breach of his most recent visa, this factor does not weigh heavily in the Tribunal’s deliberations.

   Hardship

4. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. He has expressed a desire to do further studies in Australia. The Tribunal acknowledges that both the Applicant and his family will suffer some degree of psychological hardship and disappointment if his visa is cancelled and he is forced to return to Malaysia without completing a degree. However, he has been given ample opportunity to complete the degree and has either been unable or unwilling to do so. The Applicant has successfully completed High School in Australia, is relatively young, and should be able to undertake further study in Malaysia if he wishes to.

   Applicant’s Behaviour towards Department

5. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in that regard.

   Other Visa Holders

6. 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

7. 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. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of a visa condition.

8. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of India and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

   International Obligations

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

   Other Relevant Matters

10. There do not appear to be any other relevant matters material to the outcome of the present review application.

    Conclusion

11. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

    DECISION

12. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    D Triaca
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.