Agam (Migration)

[2019] AATA 3622

Agam (Migration) [2019] AATA 3622 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Agam

CASE NUMBER:  1836599

HOME AFFAIRS REFERENCE(S):           BCC2018/4065872

MEMBER:Helen Kroger

DATE:13 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 13 August 2019 at 10:05am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Student Higher Education Sector – course enrolment – COE cancelled – non-payment of fees – no deferment – decision under review affirmed

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 December 2018 made by a delegate of the Minister for Home Affairs 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 applicant, Mr Agam, an Indian national, was granted a visa on 29 October 2015 for the purpose of studying in Australia.

3. On the 1 November 2018, Mr Agam was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa, inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The delegate received a response on the 8 November 2018, with a request for an extension of time to provide supporting documentation, and the delegate granted a five working day extension.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling outweighed the grounds for not cancelling the 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.

5. The applicant appeared before the Tribunal on 9 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

6. The applicant provided a copy of the delegate’s decision record for the purpose of the Tribunal’s consideration.

7. 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

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 Act, the visa may be cancelled.

   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:

   ·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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant arrived in Australia on 19 November 2015 for the purpose of studying a Bachelor of Commerce at Charles Darwin University (CDU), following the successful completion of a Certificate IV in EAL (Further Study) at Australian Technical and Management College Pty Ltd. He was issued a NOICC on the 1 November 2018 and provided a written response to the Department on 15 November 2018 explaining the circumstances around the time that his COE was cancelled and the sequence of events at that time. At the hearing, the alleged breach (as discussed by the delegate in his/her decision record, and provided to the Tribunal by the applicant), was put to the applicant with regard to the alleged breach where his COE was cancelled on 4 December 2018 by the education provider due to unpaid tuition fees. The applicant did not dispute this finding and that his COE had been cancelled.

11. On the evidence before it, namely the applicant’s admission during the hearing, the Tribunal finds that 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

12. Having found that the applicant has not complied with a condition 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’.

13. The information provided to the Tribunal at the hearing along with the applicant’s written explanatory statement to the Department has been considered by the Tribunal in its exercise of discretion as outlined below.

    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

14. The applicant is an Indian national who travelled to Australia for the purpose of studying and enrolling at Charles Darwin University for a Bachelor of Commerce, initially completing the pre-requisite studies in EAL at Australian Technical and Management College Pty Ltd. The applicant explained at hearing that he enrolled in this degree with the strong encouragement from his father, who wished him to pursue accounting. The applicant indicated that he found these subjects difficult and successfully completed only 3 out of 6 semesters in 2 years.  The applicant’s father was covering the cost of the tuition fees along with support for daily expenses.

15. The applicant indicated at hearing and in his written submission dated 8 August 2019 that his father suffered medical issues during 2017  that required him to undergo surgery and treatment, and accordingly could not the tuition fees.  The applicant indicated that he sought an extension of time for payment from CDU, whilst indicating during the hearing that he had not advised his father of the circumstances created by the non-payment of fees, as he did not wish to upset him any further. The applicant had paid $3000 towards the semester but was required to pay the outstanding amount that he did not have and indicated at hearing that his COE was cancelled after a number of requests from CDU for the payment of the balance of the semester fees.

16. The applicant indicated during the hearing that whilst his family circumstances at home meant that they could no longer pay for the tuition fees, he did not have the courage to advise them that his enrolment had been cancelled as it would further upset his father and cause him distress. 

17. The applicant later enrolled in a Bachelor of Information Technology at Melbourne Polytechnic in November 2018, with the applicant indicating that he wished to study information technology as he was interested in opening a cyber café at home after completion. He consistently indicated the importance of successful completion of a course to his father, although was unable to explain how he was to satisfy this wish when he was unable to pay the fees.  He indicated the negative impact a return to India without a qualification would have on his father, and the importance attached to his education.

18. The Tribunal accepts that the applicant completed the EAL and immediately commenced the Bachelor of Commerce, passing only 3 of the 6 semesters, and accepts that the applicant persevered with the course due to the importance placed on it by his father. The Tribunal also accepts that the applicant approached the educational provider for an extension of time to pay the fees, and that this was not granted and the applicant was given three reminders for payment.  The applicant indicated at the hearing that at no stage did he speak to his family about these financial circumstances and deadlines, notwithstanding the fact that he had no alternate recourse for payment of the fees, as he was concerned about the effect it would have on them.  There is no evidence before the Tribunal to suggest that the applicant actively sought to defer his studies at this stage, whilst he was seeking an extension of time to pay his fees.  The applicant indicated that he did not confirm his changed circumstances to the Department although he communicated his circumstances to the education provider.

19. The Tribunal accepts that the applicant came to Australia for the purpose of studying , immediately undertaking and completing the prerequisite English course before commencing a Bachelor of Commerce at CDU, completing 3 out of 6 semesters, and has considered the circumstances at the time and that the applicant chose not to return home when impacted by financial difficulties and that he did not communicate his changed circumstances to the Department. As such, the Tribunal gives less weight in favour of the applicant and more weight to the 7 month breach during which the applicant was not enrolled in an approved registered course of study.

    The extent of compliance with visa conditions

20. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions of the visa and the Tribunal is mindful of the significance of the breach. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

21. The applicant, through his migration agent, submitted a fulsome written account to the Tribunal, explaining his extended family circumstances at the time his COE was cancelled, that directly impacted his ability to pay the tuition fees.  In this written account he claims:

    “Financial Hardship and Stress due to Father's Ill-Health: The 'applicant' states that due to a sequence of circumstances happening in his family, which lead to financial tribulations and hardships for all the family members at home, he could not pay his fees for the fourth semester (Semester 2 of 2017) on time. The full fee for the semester was AUD l 0,400 and he could only manage to pay approximately $3,000. His father wasn't keeping well for a long time. He had to undergo a major heart surgery in the year 2015. Agam states that over the months his father's poor health conditions had taken a toll on each of the family members. He states that he did not have the courage to inform his father, who is a heart patient, about the cancellation of his CoE. He knows it would create an adverse impact on his father's health who has already invested a lot in his son's education and expects he would return to his home country with a valuable Australian academic degree.

    From July 2017, applicant's father could not send him his fees for the next semester. Family's financial sources had depleted. Applicant states that his family had to channelize its funds towards the father's ongoing medical treatment for few months which affected Agam's capacity to pay his tuition fees on time.

    Emotional Distress due to Grandfather's Death: Applicant states that his grandfather was diagnosed with a number of illnesses. For a long time, he was bed-ridden because of his broken hip. As a family, Agam could feel his pain. The family was aiming for his surgery in April 2018 and saved some money for the ' after surgery professional-physio services. Just a day before the surgery, on 18th April 2018, Agam's grandfather passed away.

    Applicant states that he had to cope with the sad news of this loss all alone.  He wanted  to go back to his home country, but his agent advised him to either wait   till the admission and visa issues are sorted or depart forever. Without a valid CoE, applicant would not have been able to return and start again.

    Applicant's family had to cope with the cost of funeral and other related expenses which escalated its financial hardships. During this time of bereavement, applicant was also undergoing severe distress.

    Financial Burden because of Grandmother's terminal Illness and Death: By the end of May 2018, applicant states that his family had to confront another grave issue. His maternal grandmother was diagnosed with a serious illness like cancer. This had put another financial strain on applicant' s family besides more emotional stress. Applicant' s mother decided to share expenses for her mother' s treatment as a responsibility. At this time, the family used their resources to start the treatment of cancer.

    Applicant' s father had to take his savings out of his provident fund to provide financial help for Agam' s maternal grandmother ' s medical treatment. In January 2019, applicant' s grandmother also passed away due to terminal illness (find attached the death certificate)

    Possible Effects of Cancellation on the Applicant: Decision to affirm cancellation would put a very negative effect on Applicant's education and career. All investments made for his current and future academic goals would go in vain. Agam's younger brother in his family is also struggling with his education, due to the family's change of circumstances.

    The case officer has raised an issue that Agam did not advise the Department of his change of circumstance due to the mental trauma he was experiencing. For this, Agam states that all these months, he had been trying his best to save money for his Co E and initial fees. There was a time when he considered leaving his dream of study in Australia and returning. He states that he would not get admission in any full-time course in his home country due to a gap. This would cause a lot of embarrassment and shame to the family and himself.

    Applicant comes from an educated family, his father being a Master's degree holder along with Bachelor of Education and currently working as a government lecturer in his home country. His younger brother is also studying in 10th  standard . The family  highly  values education. Returning without any success would not only be matter of financial and psychological distress for the whole fan1ily, also it is highly likely that he would not be able to cope up in his home country. Applicant wouldn't get admission in any reputed institution because of the gap. His future would be utterly dark if the decision be affirmed.”

22. The extract detailed above from the explanatory statement submitted by the applicant, indicates the applicant’s concern in telling his father about his changed enrolment circumstances. The applicant indicated at hearing that he did not consult his father, following the education provider’s multiple requests for the tuition payments before they finally cancelled the COE, because he did not wish to cause him distress. He also indicated his concern for his father’s state of health given he had previously suffered a heart condition. In the account extracted above, the applicant references family circumstances including the father’s health and that due to the investment already made in his education, that the expectation was that he would return with an Australian qualification. In this extract, details in relation to the Grandfather’s death and Grandmother’s illness are also canvassed, suggesting that the emotional and financial costs implicit in these events, further imperilled the payment of the applicant’s tuition fees. Whilst the Tribunal has considered the potential complications these events may have had on paying the tuition fees, the Tribunal does not give these events any weight in considering whether they remain an on-going consideration in terms of the cancellation of the applicant’s visa.  

23. Whilst a detailed account of the extended family has been proffered, the Tribunal has also had regard to the applicant’s oral evidence provided at hearing. The applicant submitted that he chose not to share his personal circumstances regarding the non-payment of the tuition fees with his father as he was afraid that it would adversely affect him. The Tribunal sought clarification on this at hearing, and in particular, how the applicant hoped to resolve payment of his fees if his father was unaware that it was an issue that could lead to the cancellation of his COE. In response, the applicant reaffirmed his concern to protect his father from the situation, claiming he did not have the courage to tell him and that he was concerned about the affect it could have on his health. He explained that he worked, subject to his visa conditions, to support himself, with the aim of saving money to direct to his fees, and acknowledged the difficulty in raising sufficient funds.

24. The Tribunal has considered the personal circumstances as described by the applicant and the aspirations he expressed, namely to complete a degree and return home to India with an Australian qualification. The Tribunal has also had regard to the applicant’s claims that his father has invested considerable resources in him to date and he doesn’t want to return home and disappoint him without anything to show for it. In the written extract above, the applicant also details the emotional difficulties faced by the family with the death of his Grandfather and Grandmother’s illness and the Tribunal has empathy with the emotional difficulties that the applicant has faced. Notwithstanding the emotional and financial challenges faced by the applicant and his wish not to disappoint his father, the Tribunal appreciates that a cancellation would cause some disappointment and emotional distress, and considers this to be a necessary condition of the cancellation of a visa.

25. Whilst the applicant claims that he would not be able to apply to a relevant education provider to study in India, there is no evidence before the Tribunal to support this claim and the Tribunal has considered the assistance that could be potentially provided by the applicant’s father, a lecturer in India, to provide guidance and assistance to his son, in pursuing further educational opportunities either locally or in the region.

26. The Tribunal has considered all the personal circumstances as submitted at hearing and in writing to the Tribunal and has considered the emotional hardship that may be potentially caused. It is not unreasonable to expect that the applicant would speak to his father, if he wasn’t able to pay the fees, to discuss what he should do, given the imminent cancellation of his COE, as advised by his education provider, notwithstanding the reasons for the non- payment. This is particularly relevant when the applicant’s father is a lecturer in the education system in India, and it would be reasonable to consider that he would understand relevant requirements.

27. Whilst the Tribunal has empathy for the applicant and the changed financial circumstances he experienced, the Tribunal considers the financial difficulties he faced not to be unique and has given consideration to his decision not to return home whilst addressing these difficulties, ensuring his compliance with the conditions attached to his visa.

28. Having considered all the personal circumstances, and the evidence referenced above, the Tribunal gives more weight to the significance of the breach, the time that has elapsed since the applicant was enrolled, than the hardship potentially caused to the applicant.

    Circumstances in which ground of cancellation arose

29. The applicant in his oral evidence and also in his explanatory statement, indicated that he was into semester 4 of a Bachelor of Commerce, second year, when his father took ill, requiring surgery and post operative care, impacting on his ability to cover his son’s tuition fees.  The applicant had paid $3000 towards the $10,000 plus account, and was unable to fund the outstanding amount.  He indicated that he contacted the education provider by email to seek an extension of payment.  This was not granted and after three requests for payment of the outstanding fee, the applicant’s COE was cancelled.  Whilst the applicant has submitted to the Tribunal the health circumstances of his extended family around this time, and the fact that he had not told his father that his COE would be cancelled should the full tuition fee not be paid, he has not indicated what may have transpired at the time when his father divulged that he didn’t have any funds for him.  In his submissions, he has indicated that he thought the shortfall could be addressed expeditiously, and indicated that he worked to support daily expenses.  He submitted that he has worked to save over $4000 that he hopes to direct to fees for a Bachelor of Information Technology.

1. The applicant submitted in his explanatory statement his contact with the education provider.

   “Applicant contacted the university for payment plans. He emailed the request for extension to pay his tuition fees (date of request: 01/09/2017) and included evidences like medical certificates of his father's ailments and the family's misfortune. His appeal was insensitively refused and was asked to clear his tuition fees as soon as possible. Moreover, the university did not offer any payment plan for the affected semester nor advised him to seek counselling for his emotional distress. The date to defer had passed, so the fee paid (approx. $3000) for the fourth semester was also not returned to Agam. He was asked to pay the remaining fees ($10,400) three times. After the Applicant failed to pay the remaining fees, the university cancelled his CoE.

   Cancellation of Charles Darwin University CoE happened after the applicant failed to pay his fees for the 4th semester which was only circumstantial. Financial hardship due to the applicant' s family's medical conditions were the reasons for non-payment of a semester fees. Applicant had no deliberate intention to breach any condition or non-compliance.

   The university did not offer any option of payment plans to the applicant. Beside this, applicant wishes to bring it to everyone' s notice that the university website is not user friendly. It is really very hard to find elements like university's refund policies, census dates, access to psychologist's services, payment plan options etc.

   As a result of the Cancelled CoE, applicant received the NOICC because the department noticed that he was not enrolled in any registered course. For 7 months, applicant had to stay non-enrolled because he was struggling to save money for fees and living expenses. By July 2018, applicant was again all hopeful that he would be able to get admission and commence his studies. His hopes turned positive and Agam was offered a place by Melbourne Polytechnic in August 2018. He commenced his study of the Bachelor's degree again before the NOICC was issued…”

2. The above submission indicates that the applicant emailed the education provider to seek an extension to pay his tuition fees, a request not granted. The submission indicates that the applicant did not seek to defer his studies at this stage, as the “date to defer had passed”, and that as he was unable to pay the fees, the COE was cancelled.

3. The Tribunal considers it reasonable for the applicant to be aware of all the conditions attached to the visa, including full payment of the fees, with the applicant indicating during the hearing that his father presented the necessary documentation upon application, to demonstrate they had the capacity to pay the fees.  Whilst these financial circumstances changed since the applicant’s enrolment,  the evidence indicates that the applicant did not seek out necessary advise or assistance to properly consider his options either through his education provider or through the Department.

4. Given these circumstances, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the period in excess of 7 months in which the applicant was not enrolled in a registered course of study. As such the Tribunal finds these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

   Past and present behaviour of the visa holder towards the department

5. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.

   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

6. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision. The applicant would be excluded for a period of three years from applying for another to Australia as a consequence of the cancellation and the Tribunal gives this little weight in favour of the applicant.

   Whether any international obligations would be reached as a result of a cancellation

7. There is nothing before the Tribunal to indicate there are international obligations to consider.

   Any other relevant matters

8. Since the COE was cancelled by CDU, the applicant has secured an offer to undertake a Bachelor of Information Technology at Polytechnic Melbourne and has saved and paid $4375 towards the fees.  The total fees for the Bachelor course are $52,500. The applicant indicated that he would be assisted in paying the remaining fees by his father although there is no evidence before the Tribunal to support the applicant’s claims.

9. Whilst the Tribunal is not unsympathetic to the applicant’s wish to resume studies so that he can successfully complete and return to India with an Australian qualification, the Tribunal does not consider it unreasonable for the applicant to be aware of the conditions attached to his visa, namely, satisfactory enrolment with a registered provider.

10. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the breach of seven months is significant in the context of a student’s study period and the fact that he was aware of the expectations placed upon him along with the fact that he did not seek to defer his studies within the necessary timeframe or make any attempt to contact the Department.

11. As such, considering the circumstances as outlined by the applicant during the hearing and the written explanatory statement submitted on his behalf by his migration agent, the Tribunal concludes that the visa should be cancelled.

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

    Helen Kroger
    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.