Bajekal (Migration)

[2018] AATA 192

Bajekal (Migration) [2018] AATA 192 (31 January 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aditya Ashwin Bajekal

CASE NUMBER:  1619814

DIBP REFERENCE(S):  BCC2016/2970114

MEMBER:Christine Kannis

DATE:31 January 2018

PLACE OF DECISION:  Perth

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

Statement made on 31 January 2018 at 7:38 am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course – Consideration of discretion – No extenuating or compassionate circumstances

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 November 2016 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 23 January 2018 to give evidence and present arguments. 

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 19 August 2015. He was enrolled in a Bachelor of Science which was cancelled on 19 August 2015. The reason for cancellation was stated to be “unsatisfactory course progress”.

8. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 19 August 2015. The Tribunal finds that he breached condition8202(2)(a) of his visa.

9. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

   Consideration of the discretion to cancel the visa

10. 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).

11. On  14 October 2016 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

12. The applicant did not respond to the NOICC.

13. At hearing the applicant provided the following:

    ·An undated letter addressed to “Dear Student” from the New York Institute of Photography confirming the student’s enrolment in an online Professional Photography course.

    ·An information statement from the New York Institute of Photography about an enclosed Press card. A blank Press card was also provided.

    ·A CD described as #First World Problems.

    ·Several photos of wildlife and scenery.

    ·An envelope addressed to the applicant, marked FedEx Express. The shipped date was stated to be 2 June 2017 and the origin was stated to be from “Distance Education Co”.

14. The applicant told the Tribunal he did not respond to the NOICC because at that time he was suffering from severe depression. He said he had lost contact with family and friends and was isolated. He spent days in his room and did not check his emails. The applicant said he accepted that it was a mistake to have not responded to the NOICC.

15. The applicant said that after receiving a second email from the Department in November 2016, he contacted two migration agents. The second agent told him to try and enrol in a course and study. He told the Tribunal he tried to enrol in Photography courses at TAFE and with open colleges but his applications were not accepted because his visa had been cancelled. The applicant said he had two meetings with the second agent and then they lost contact.

16. The applicant told the Tribunal that he originally came to Australia to study Science because his parents forced him to do so. This was expected of him because his cousins and all his generation in the family have studied Science. He has always wanted to study Wildlife Photography and this has been the source of a constant feud with his parents since December 2013.

17. The applicant said his parents are aware that he is not currently studying Science because in 2015 he told them he wanted to take a break from that course. His parents have been financially supporting him during his stay in Australia and in 2013 they threatened to disown him when he told them he wanted to change his area of study from Science to Photography. He said this would mean they would cut off contact as well as their financial support. He said he previously lived in fear of being disowned because he has no family in Perth. In recent months he has been attending counselling with a psychologist at Keys to Freedom Counselling and he is no longer fearful of being disowned. He no longer wants to be part of his family and he wants to start over and get his life back in track.

18. The applicant conceded that he had made a serious mistake in not remaining enrolled in a registered course. When asked about the “unsatisfactory course progress” recorded in the PRISMS he said he was depressed about his parents’ threat to disown him if he changed his course from Science to Photography and as a result he lost the will to study.

19. The applicant said in January 2017 he enrolled in an online course with the New York Institute of Photography. The envelope provided indicated that it was posted on 2 June 2017. The applicant said it had arrived late. The applicant conceded that this course is not a registered course for the purposes of his visa. He said he provided the CD and the photos to demonstrate that he has not been sitting around since cancellation of his visa. He said he had been teaching himself photography by watching YouTube videos and accessing other information on the internet. He wants to study a double degree in Photography and Music. 

20. Regarding the potential hardship which would result from the cancellation of his visa, the applicant said he would lose his whole life. When asked to explain this statement he said that he came to Perth to study Wildlife Photography and he believes that Perth is one of the best places in the world for this area of study. He wants to study a Certificate IV in Photography and Photo Imaging at TAFE.

    Conclusion

21. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the applicant’s oral evidence and in the documentary evidence provided at the hearing.

22. The applicant did not dispute that he was aware that he was in breach of a condition of his visa following cancellation of his enrolment on 19 August 2015. He attempted to enrol in a Photography course after he was notified of the cancellation of his visa on 8 November 2016. It is unlikely that this course would have been a higher sector education course as required by Subclass 573.

23. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 19 August 2015 and more than 12 months elapsed from that date until the NOICC was issued.  

24. Given the central importance of enrolment to a student visa, the Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

25. Having considered all the matters raised by the applicant at hearing the Tribunal finds that it is positively satisfied that the applicant’s non-compliance with the visa condition was not due to exceptional circumstances beyond his control. The applicant told the Tribunal that the cancellation of his enrolment was due to his parents forcing him to study Science and threatening to disown him if he changed his course from Science to Photography. He said he became depressed and lost the will to study.  No medical evidence was provided to support the severity of the applicant’s depression.

26. The Tribunal finds that there are no extenuating or compassionate circumstances in this case.

27. The Tribunal accepts that the applicant will suffer hardship by cancellation of his visa because he will not be able to apply for a visa to return to study in Australia in the near future. The Tribunal also accepts the applicant’s evidence that his family may disown if he returns home without completing his Science studies.

28. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

29. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does no claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

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

    DECISION

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

    Christine Kannis
    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.