Aedla (Migration)

[2019] AATA 3559

Aedla (Migration) [2019] AATA 3559 (28 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Krishna Chetan Reddy Aedla

CASE NUMBER:  1730202

HOME AFFAIRS REFERENCE(S):           BCC2017/3518713

MEMBER:Joseph Lindsay

DATE:28 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 28 May 2019 at 9:41am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant did not commence studies – unlawful residence in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Conditions 8202, 8531

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to remain in a registered course of study and breached condition 8202(2)(a) ofhis student visa. 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 attended the hearing before the Tribunal on 4 April 2019. The applicant had an agent but the agent did not attend the hearing. The applicant spoke English well and indicated he did not need an interpreter.

4. 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

5. 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?

6. 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).

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

8. In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department of Immigration and Border Protection dated 27 November 2017 indicating that he had not been enrolled in a registered course of study since 12 April 2017. In his response to the Tribunal, the applicant agreed that he had not been enrolled in a registered course of study since 12 April 2017.

9. 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)(a). The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

10. The Tribunal also spoke to the applicant about information before the Tribunal that he was not on a Bridging Visa E and that he had been unlawful since his student visa was cancelled on 27 November 2017 – nearly 18 months - and that this circumstance may cause the Tribunal to find that the applicant also breached condition 8531 of Schedule 8 to the Regulations (the holder must not remain in Australia after the end of the period of stay permitted by the visa). The Tribunal put this information to the applicant in accordance with s.359AA of the Act. The applicant did not want an adjournment or more time in which to respond.

11. The Tribunal asked the applicant why he did not have a Bridging Visa E and he indicated that he did not know why he did not have a Bridging Visa E. The applicant indicated he did not know what a Bridging Visa E even was, let alone any requirement that he had to have one to remain in Australia lawfully. The applicant indicated he simply let his agent deal with these matters and that his agent did not tell him.

12. When the Tribunal asked the applicant if he had checked Visa Entitlement Verification Online (VEVO) himself to see if he had a Bridging Visa E, he indicated that he did not know how to check VEVO and had never checked VEVO. The applicant indicated he simply let his agent deal with these matters.

13. Accordingly, the Tribunal finds that the applicant has been unlawful since the delegate cancelled his student visa on 27 November 2017 – nearly 18 months ago – and in these circumstance the Tribunal finds that the applicant breached condition 8531 of Schedule 8 to the Regulations (the holder must not remain in Australia after the end of the period of stay permitted by the visa). The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with conditions of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    Student history, PRISMS record and the circumstances in which the ground for cancellation arose

15. The Tribunal asked the applicant about his student history. In response, the applicant indicated that he had been in Australia since 2015 and that he had enrolled in a Master of Technology. He indicated that he had applied and received two deferrals of his course. The applicant indicated that he did not cease his studies by his own volition, but rather he thought he was simply on a break from his studies.

16. The Tribunal considered the applicant’s Provider Registration and International Student Management System (PRISMS) record and indicated to the applicant that what he had told the Tribunal about his student history appeared to be true in respect to the two times he deferred his studies. However, the PRISMS record indicated that the reason why the applicant had stopped studying on 12 April 2017 was because he himself had told his course provider he ceased his studies. The Tribunal put this information to the applicant in accordance with s.359AA of the Act. The applicant did not want an adjournment or more time in which to respond. In response, the applicant indicated that he did not cease his studies by his own volition but that in April 2017 he was sick and that was the reason why he did not continue his studies. However, the applicant indicated he never told either his course provider or the Department about his health problems. The applicant made it clear that the only reason why he stopped studying was due to his health problems. He explained that he had Brugada syndrome, a condition that causes a disruption of the heart's normal rhythm.

17. However, the applicant had never received any medical diagnosis or medical treatment from any medical practitioner for his health condition. The applicant referred to an ECG printout he had, but he had never received any medical diagnosis or medical treatment from any medical practitioner for his health condition.

18. In considering the above, the Tribunal places low weight on the applicant’s claimed health condition because he had never received any medical diagnosis or medical treatment from any medical practitioner for his health condition, yet attributes his health condition to be the sole reason why he stopped studying.

19. The Tribunal finds that the applicant’s claimed circumstances as to why he did not remain enrolled are not exceptional circumstances. The Tribunal finds that the applicant, as he admitted, did not take reasonable steps to manage his personal circumstances where he found that he experienced health issues and he did not contact his course provider or the Department to notify them of his circumstances.

20. The Tribunal gives low weight to the applicant’s circumstances as to why he did not maintain his course enrolment.

    The purpose of the visa holder’s travel and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

21. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

22. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202 and condition 8531. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

23. In response to this issue at the hearing, the applicant indicated that if his visa was cancelled he would suffer no hardship because he would return to his country of origin to look after his health and to enrol in a course of study in his country of origin.

24. The Tribunal gives no weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

25. There is no evidence that the applicant has been uncooperative with the Department in the past. In reference to the circumstances indicated above where the applicant has apparently been unlawful for the last approximately 18 months, there is no indication he had intended to do this because, as he indicated, he did not even know there was any such thing as a Bridging Visa E or that he had to have one to remain in Australia lawfully after his student visa was cancelled. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

26. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his student visa. The Tribunal places low weight on this information in the applicant’s favour.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

27. At the hearing, the applicant indicated that he was not aware of the legal consequences of the cancellation of his student visa, in particular when his student visa was cancelled he needed a visa to remain in Australia lawfully – which at the time of the hearing he did not have.

28. The applicant seemed surprised when told that the consequences of him being unlawful were that he may be liable to detention and removal from Australia. 

29. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

30. The Tribunal places low weight on this information in the applicant’s favour.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

31. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The only thing the applicant indicated that he feared about going back to India was in regard to his health and his desire to stay in Australia so he could access better medical treatment – although he had previously admitted he had never received any medical diagnosis or medical treatment from any medical practitioner for his health condition. 

32. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

33. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated that there were no other relevant matters he wanted the Tribunal to be aware of.

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

    Conclusion

35. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 13 November 2015, now approximately three and a half years ago, the applicant has not completed any higher education courses.

36. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 12 April 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

37. The Tribunal finds that the circumstances that led the applicant to not complete any higher education courses, as detailed above, are not exceptional circumstances. 

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

    DECISION

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

    Joseph Lindsay
    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.