Avinash (Migration)

[2020] AATA 4114

Avinash (Migration) [2020] AATA 4114 (9 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Battula Avinash

CASE NUMBER:  1913832

HOME AFFAIRS REFERENCE(S):          BCC2019/280008

MEMBER:David McCulloch

DATE:9 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 09 July 2020 at 12:09pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – credibility – inconsistent claims – grandfather’s illness, applicant’s potential arranged marriage and parents’ serious injuries, or financial problems –re-enrolment after receiving department’s notice – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a national of India, born in September 1991. The visa that has been cancelled was granted on 24 October 2017 for a stay period until 11 August 2019. That visa was subject to condition 8202.

2. On 28 March 2019, the applicant was issued with the 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 from 15 July 2018. The applicant provided a response to the NOICC on 1 April 2019.  On 22 May 2019 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. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic on 6 July 2019 at 9.30am. 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.

5. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing, also by telephone.

6. At some points in the hearing, the Tribunal had difficulty understanding the applicant and his migration agent. Where there were difficulties, the Tribunal asked that the applicant and his migration agent repeat their answers. The Tribunal was then able to understand what was being said.

7. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. 

8. 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

9. 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 dated 13 August 2019 for review of a decision 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 Act.

   Did the applicant comply with condition 8202?

10. 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).

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

12. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he was not enrolled in a registered course of study between 15 July 2018 until 23 April 2019.

13. In the hearing the applicant agreed that he had not been enrolled in a registered course between these dates.

14. 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.

15. 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

16. 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.

17. 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 of the Act (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.

18. The Tribunal notes the following evidence, including claimed extenuating circumstances beyond the applicant’s control explaining his failure to be enrolled in a registered course.

19. The Provider Registration International Student Management System (PRISMS) indicates that the applicant was enrolled in a Master of Business Administration from 31 July 2017 until 31 December 2018. This course was deferred/suspended on 16 April 2018 due to compassionate or compelling circumstances. PRISMS information indicates that the deferral was granted until 15 July 2018.

20. The Department contacted the education provider who answered relevant questions asked by the Department. The education provider also provided documents relating to the applicant’s claim for a deferral of the course. Those responses and documents disclose that the applicant was granted a deferral from April to June 2018 on the basis of a marriage. Also on the Departmental file is a ‘Treatment Certificate’ from a hospital in India dated 7 March 2018 indicating that a named individual is suffering from throat cancer, at the first stage with a schedule for undergoing surgery. Another letter is provided from a different hospital dated 20 April 2018 indicating a couple were admitted to the hospital as patients on 25 March 2018 with fractures needing medical attention. The individuals needed to be rested for at least three to four months in order to get stable.

21. The education provider indicated to the Department that the applicant did not re-enrol in the Master of Business Administration as per the schedule planned in July 2018. The applicant did not contact the provider until 3 April 2019. On the Departmental file is a Confirmation of Enrolment generated on 23 April 2019 indicating the enrolment in a Master of Business Administration commencing on 15 April 2019 until 19 June 2020.  The PRISMS record indicates that this enrolment has been cancelled.

22. On the Department file is an explanation from the applicant relating to his non-enrolment. The applicant indicates that the reason he sought a deferral was because his grandfather was in the last stages of cancer and that he wanted to see the applicant married before he died.  The applicant was completely stressed and unable to handle the situation and requested a deferral. The applicant returned home for the wedding but when family members were returning from temples they met with an accident. The applicant’s parents were completely unable to walk. This made the applicant very low and he called off the wedding. The applicant stayed in India to look after his parents. Later the applicant’s parents recovered and encouraged the applicant to return to Australia and study. The applicant indicates that he intends to enrol this semester and finish his Masters and fulfil his dream. The applicant indicates that he had no option but to leave his Masters for one year. The applicant thought that the needs of his family were more important than meeting his visa conditions. The applicant indicates that everything is all right with him and there will be no problems until he finishes his Masters.

23. The applicant also provided to the Department an email dated 1 April 2019 indicating that he should be enrolled by now but due to an accident that happened he was late. Provided is a letter dated 30 March 2019 from Princess Alexandria Hospital in Queensland indicating that the applicant presented at emergency on 30 March 2019 and was diagnosed with an abrasion of the hip and soft tissue injury, having been involved in a traffic accident. It is indicated that the applicant did not sustain any significant injuries except for bruising in the right calf. The patient is safe for discharge. A Medical Certificate is provided indicating that the applicant will be unfit for duty from 7 April 2019 until 7 April 2019.

24. On the day before the Tribunal hearing, the applicant provided a statement explaining his non-enrolment together with a number of supporting documents.

25. In this statement the applicant provides a different explanation than that previously provided for his failure to be enrolled in a registered course for a period of approximately nine months. The applicant indicated that he was not enrolled because he had financial problems causing him not to enrolled in July 2018, impliedly because of the non-payment of fees. In the hearing, the applicant indicated that these problems had resolved in March 2019 causing the applicant to be able to fund his re-enrolment in the MBA.

26. The written explanation provided by the applicant just before the hearing provides no indication of the applicant returning to India, his parents having an accident, and this being the reason for the applicant having to stay in India and not continuing study with Holmes Institute.

27. When the Tribunal asked the applicant in the hearing to provide an explanation in his own words of his progress in the MBA and the reason why he ceased to be enrolled, the applicant referred to difficulties in India concerning the illness of his grandfather and a potential arranged marriage, but this not being progressed. The applicant indicated that these problems combined with financial pressures suffered by his family were the reason that the applicant was not enrolled. The applicant made no mention of having returned to India, as had been previously claimed.

28. The Tribunal put to the applicant that he had not provided recent evidence of returning to India and his parents suffering an accident resulting in the applicant having to stay in India as being reason for non-enrolment. The applicant admitted that he had not returned to India.

29. The Tribunal put to the applicant that he appeared to have blatantly lied in providing an untruthful explanation. The applicant agreed that this was the case. He indicated that he needed to lie to get his new Confirmation of Enrolment in the MBA.

30. The Tribunal put to the applicant that he could well have been honest with his education provider and explained that circumstances in India changed such that he did not travel there, but because of temporary financial hurdles the applicant was not able to return to study in July 2018 as planned. The applicant could then have explained that those financial hurdles had resolved such that the applicant was in a position to recommence the MBA in March/April 2018.

31. In response, the applicant indicated that the untruthful statement to the education provider had been given after a delay in the education provider issuing the Confirmation of Enrolment and after the applicant consulted his previous migration agent.

32. The Tribunal put to the applicant that his significant earlier untruthfulness as to claimed extenuating circumstances could undermine the applicant’s credibility generally, particularly in relation to claims that financial hurdles were in fact the impediment to enrolment. Such a claim would also be inconsistent with the earlier claim by the applicant that his parents were actually encouraging the applicant to study.

33. Credibility concerns in relation to claimed financial problems being the reason that the applicant did not recommence the MBA in July 2018 are also undermined by the late provision of this claim, and the failure by the applicant to make such a claim in providing a response to the Department to the NOICC.

34. The Tribunal also put to the applicant credibility concerns relating to the applicant’s written statement provided just before the hearing that when funds become available in March 2019 he applied for the same course at Holmes Institute but that ‘all of a sudden’ the Department issued the NOICC.  This was because the reality, as acknowledged by the applicant earlier in the hearing, was that the applicant only re-enrolled in the MBA after receiving the NOICC. This could form the impression to be created that the enrolment was opportunistic in response to the NOICC rather than reflecting a genuine desire to study the course. The Tribunal indicated to the applicant that the misleading indication in the written statement in terms of the re-enrolment in the MBA occurring before the NOICC could reinforce concerns as to the untruthfulness of the applicant.  This would be combined with the fact that the documentary evidence provided by the applicant just before the hearing from the education provider makes clear that the applicant requested that the course be cancelled on the basis that he intended to return to his home country (with the applicant requesting a refund) prior to the education provider indicating that the enrolment had been cancelled because of the cancellation of the visa.  In response the applicant said that that was ‘maybe true’.

35. These several credibility concerns, considered cumulatively, result in the Tribunal not being satisfied as to the overall truthfulness of the applicant. The Tribunal is not satisfied with the applicant’s later claims that financial issues were the key reason for his failure to be enrolled in a registered course for approximately nine months. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that justify his not being enrolled in a registered course while holding the visa for a period of approximately nine months for the various reasons claimed. This is adverse to the applicant in the exercise of the Tribunal’s discretion.

36. The Tribunal also considers that the evidence discloses that the applicant did not have a genuine intention to actually study when he re-enrolled in the MBA after receiving the NOICC.

37. In this respect, the Tribunal notes again credibility concerns on the basis that the evidence discloses that the applicant made proactive attempts to cancel in May 2019 his re-enrolment in the Master of Business Administration, and seek a refund of fees, on the basis that he was to return to his home country, which clearly the applicant did not do. There is a credibility concern also that this request for cancellation of enrolment came before the applicant was advised by the education provider that his enrolment had been cancelled. The applicant’s proactive attempt to cancel the course is contrary to the applicant’s initial evidence in the Tribunal hearing that, if he could of, he would have continued to study this course. If that were truly the case, the applicant would have made a more concerted effort than he did to engage with a migration agent to facilitate a bridging visa without a no study condition that would facilitate the applicant’s ability to continue to study, albeit without a student visa.

38. The fact that a bridging visa is not a barrier to study is demonstrated by the applicant providing, on the eve of the Tribunal hearing, an enrolment in a Diploma of Leadership and Management dated 26 June 2020.

39. This evidence indicates to the Tribunal the opportunistic nature of his re-enrolment in the MBA and it being done for the primary reason of responding to the NOICC rather than on the genuine basis of a desire to study the course.

40. Adverse to the applicant is the applicant not having earlier secured enrolment in a registered course after cancellation of the second enrolment in the MBA.

41. The applicant indicated in hearing that if the visa is reinstated his goal would be to ultimately progress to finishing his MBA and then returning to India. The failure by the applicant to be able to achieve this would be a compelling reason for the applicant to wish to remain in Australia and a hardship to the applicant if the visa was not reinstated.

42. The applicant has provided evidence of having undertaken four units in the MBA and having received a credit for one unit, failing two units and being rewarded a supplementary examination in a fourth unit.

43. The Tribunal has concern as to the fervency of the applicant’s desire to progress with the MBA given the year-long period after the deferment was granted on false pretexts with the applicant not approaching the education provider until 3 April 2019 only days after the receipt of the NOICC, and the applicant unilaterally requesting cancellation of the second enrolment in May 2019. Nevertheless, the Tribunal is willing to accept a degree of hardship to the applicant if he is not able to progress with any study of some description in Australia and an inability to remain in Australia.

44. The Tribunal also accepts hardship to the applicant if the visa remains cancelled in terms of him being barred on applying for many categories of visa for a significant period. The Tribunal accepts that if the visa remains cancelled the applicant could be an unlawful noncitizen, although he would be eligible to apply for a bridging visa to make his status lawful.

45. The applicant indicated in the hearing that he does not fear persecution or significant harm on return to India. The applicant indicated that there are no children in Australia whose interests would be affected by the continued cancellation of the visa.

46. The Tribunal considers that these are the relevant discretionary factors in this matter.

47. The Tribunal balances discretionary factors. As indicated, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that justify the applicant’s non-enrolment for a registered course for approximately nine months while he held the student visa. Adverse to the applicant is the fact that the Tribunal is of the view that the prime catalyst for the applicant re-enrolling in the MBA was the receipt of the NOICC and him unilaterally seeking to cancel the second enrolment in the MBA in May 2019. Adverse to the applicant is the applicant only just prior to the Tribunal hearing enrolling in a registered course. Cumulatively considered, these matters are significantly adverse to the applicant.

1. Countering this, the Tribunal accepts there will be some degree of hardship to the applicant if he is not able to remain in Australia and progress with study of some description, although the Tribunal has concerns with the extent of the applicant’s desire in this respect. The Tribunal accepts the hardships to the applicant if the visa remains cancelled will be in terms of restrictions on applications for visas in Australia and a bar of entry to Australia for a period.

2. Weighing discretionary factors, the Tribunal determines that matters adverse to the applicant outweigh the hardship that he would face/discretionary factors in his favour.

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

   DECISION

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

   David McCulloch
   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.