1512236 (Migration)

[2016] AATA 4254

1512236 (Migration) [2016] AATA 4254 (17 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Srikanth Gupta Madhamshetty

CASE NUMBER:  1512236

DIBP REFERENCE(S):  BCC2015/1616088

MEMBER:David Corrigan

DATE:17 August 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 17 August 2016 at 5:20pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 September 2015 made by a delegate of the Minister for Immigration 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 complied with condition 8202(2) as he had not been enrolled in a registered course.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 17 August 2016 to give evidence and present arguments. 

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

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

7. Condition 8202, as it applies in this case, 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 case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 3 June 2013.  It also shows that Provider Registration and International Students Management System (PRISMS) records indicate that the applicant was not enrolled in a registered course of study from 12 January 2015 onwards.  At the hearing, the applicant stated that his education provider, Cambridge International College (CIC), cancelled his confirmation of enrolment in a Bachelor of Business (Accounting) after he had not paid his fees.  He said he later went to pay his fees and within a few days he was notified by the Department of Immigration that they had cancelled his visa.  The Tribunal has considered the applicant’s comments; however it notes the PRISMS records show that he ceased to be enrolled in any registered course of study on 12 January 2015 and he has not submitted any evidence that that indicates that he was enrolled after 12 January 2015 at Cambridge or anywhere else. 

10. On the evidence before the Tribunal, the applicant was not enrolled in a registered course study from 12 January 2015 until 3 September 2015 when the delegate made his decision.  Nor was he the holder of a Subclass 560 or 571 (Schools Sector) visa. 

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for a period of over eight months.  Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

12. 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.

13. 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).

    The purpose of the visa holder’s travel to and stay in Australia

14. The applicant told the Tribunal that he undertook and completed English studies at Australian Technical and Management College (ATMC) when he first came to Australia and he submitted a confirmation of enrolment showing that this course ran from 10 June 2013 to 12 July 2013.  He also submitted records of his academic results at Federation University which shows he undertook subjects in a Masters of Information Systems in the second semester of 2013 and the first semester of 2014 all of which he failed or marginally failed. Accordingly, the Tribunal is prepared to accept that he travelled to Australia with the intention to study and has given this factor some weight in his favour.

    The extent of compliance with visa conditions

15. The Tribunal has taken into account that the applicant was in breach of condition 8202(2) for a very lengthy period of time from 12 January 2015 until 3 September 2015.  Overall it considers the extent of the breach is a significant factor that points to cancelling the visa.

16. The Tribunal has no evidence before it that the applicant has not complied with other visa conditions.  It considers this is a consideration that is in his favour and it has taken this into account and given it some weight.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

17. At the hearing, the applicant claimed that he attempted studies of the Master’s degree but found it too hard and that he had applied for a re-correction of his results but was unsuccessful.  He said that as he had a previous interest in accounting, he enrolled in a Bachelor of Business (Accounting) at CIC.  He submitted his confirmation of enrolment in this which shows this course commenced on 18 August 2014.  The applicant claimed that he did the first semester of this course but that the College did not take care of students and that they would not release his results as he had not paid his fees.  He said he asked them for time to pay his fees but that after a week they cancelled his enrolment.  He said he was confused and in depression and didn’t get admission in another course.  He said he went to a consultant for help but was told that there was no chance he could obtain enrolment in a higher education sector course as he had no transcript of his results at CIC. 

18. The Tribunal has taken into account that the applicant failed all his subjects for the Master’s degree at Federation University but it does not accept that this in itself constituted extenuating circumstances beyond his control which led to his later non-compliance with the visa condition.  The Tribunal notes that study at the Masters level can be difficult for all students and particularly for international students, but the applicant’s evidence did not indicate any extenuating circumstances beyond his control which led to this failure. 

19. The Tribunal accepts that CIC cancelled his enrolment for non-payment of fees but it does not accept that this was an extenuating circumstance beyond his control which led to the breach of the visa condition.  The applicant told the Tribunal that he used to work at a 7-11 in Australia but his father was paying for all his costs.  The Tribunal notes that international students are expected to be able to meet their study and living costs when they are granted a student visa and the applicant did not provide any supporting evidence as to why he was unable to pay the fees.  The Tribunal does not accept it as being plausible or credible that he would have been unable to obtain re-enrolment in the next available semester of the CIC course if he was then later able to pay the fees of the course.  Moreover, whilst the applicant has claimed that he could not obtain another enrolment due to his lack of a transcript from CIC, the Tribunal does not accept it is credible that he was unable to obtain enrolment in any higher education sector degree or masters course including accounting at any tertiary institution for such a lengthy period of over eight months.  On his own evidence, he did not personally approach any tertiary institution to seek enrolment and he has not submitted any supporting evidence that a consultant was unable to obtain for him enrolment in a higher education sector course at any tertiary institution.  The applicant was also unable to tell the Tribunal which tertiary institutions would not enrol him in a higher education sector course which further casts doubt on the credibility of his account.  The Tribunal does not accept that he was unable to obtain enrolment in a higher education sector course after 12 January 2015.   

20. The applicant told the Tribunal that despite his lack of enrolment for such a significant period of time that he did not contact the Department of Immigration as he did not know what to do.  The Tribunal taking into account that the applicant is an educated individual (he told the Tribunal he had obtained a Bachelor of Computer Science in India) does not accept it is credible that he would not have known he should have contacted the Department to discuss his visa options if he was in such a clear and substantial breach of an obvious condition and the Tribunal finds that this failure to do so casts further doubt on his overall credibility.

21. The applicant told the Tribunal that he had been in a depressed state during his period of non-enrolment but that he had not sought any medical help in relation to this.  Given this complete lack of evidence, the Tribunal does not accept that the applicant suffered from depression or this was an extenuating circumstance beyond his control which led to the substantial breach of the visa condition.

22. Considering all of the evidence, the Tribunal does not accept that the breach of the condition occurred in extenuating circumstances beyond his control.  It considers the circumstances considered as a whole support the cancellation of the visa. 

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

23. The Tribunal accepts that the cancellation of the visa may lead to the applicant having to return to India.  The applicant said he was the only son and his family wanted to see him in a good situation and they wanted him to have a foreign certificate and he wanted to fulfil his father’s dream.  The Tribunal accepts that his family may be disappointed; however on the applicant’s evidence his father has been able to meet all his living costs in Australia.  The applicant told the Tribunal that he had completed a Bachelor of Computer Science in India and worked for two years there in a software company and the Tribunal finds this qualification and work experience will hold him in good stead for his employment prospects on return to India.

24. The Tribunal considers on the evidence before it, the applicant and his family members are not likely to face any significant degree of financial, psychological, emotional or other hardship if his visa is cancelled and has given this only limited weight in his favour. 

    The visa holder’s past and present behaviour towards the Department (for example, whether a person has been truthful in statements or co-operative in their dealings with the Department)

25. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

26. There are no other persons whose visas would, or may be cancelled and the Tribunal finds this factor is not relevant.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

27. The applicant did not raise any matters that indicated that there would be any breach of any obligations under any relevant international agreements and the Tribunal finds this factor is not relevant.

    The impact of cancellation on any victim of family violence, or if family violence is a factor

28. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds this factor is not relevant.

    Whether there are mandatory legal consequences to a cancellation decision, such as:

    ·     whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations 

    ·     whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

    ·     whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

29. The applicant told the Tribunal he is currently on a bridging visa.Therefore, the cancellation of his student visa will not directly lead to him becoming an unlawful citizen.  Whilst the applicant may eventually become an unlawful non-citizen and liable for detention and removal, the Tribunal gives this factor only limited weight in his favour and finds it does not outweigh other factors that point to the cancellation of the visa.  The Tribunal is not satisfied, on the evidence before it, that indefinite detention is a possible consequence of the cancellation decision because he cannot be removed from Australia consistently with Australia’s non-refoulement obligations. 

30. There are no provisions of the Act that that prevent the applicant from validly applying for a protection visa without the Minister personally intervening.  Whilst he may be prevented from making a valid application for other visas without the Minister personally intervening, this is only a factor that the Tribunal gives limited weight in his favour to.   

    Any other relevant matters

31. There are no other relevant matters.

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

    DECISION

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

    David Corrigan
    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.