Bavandla (Migration)

[2019] AATA 4525

Bavandla (Migration) [2019] AATA 4525 (19 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Vamshi Krishna Bavandla

CASE NUMBER:  1828366

HOME AFFAIRS REFERENCE(S):     BCC2018/1505466

MEMBERS:Dr Jason Harkess

DATE:19 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 19 July 2019 at 11:28am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – financial hardship – applicant sought changed to a cheaper course – decision under review affirmed       

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 21 September 2018 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 7 September 2016 with an original expiry date of 15 March 2019, providing for 2 years 6 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The visa had originally been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, a Master of Information Technology course at Charles Sturt University. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to maintain enrolment in a registered course of study.

4. 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 at a hearing convened on 18 July 2019 to give evidence and present arguments.

6. For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 17 October 2017 to 31 July 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 9 months during which the Applicant was in continuous breach of the visa.

2. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

   [1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The PRISMS report obtained by the delegate indicated that the Applicant commenced studying for the Masters of Information Technology at Charles Sturt University shortly after his arrival in Australia in September 2016. However, the PRISMS report also indicates that this enrolment was cancelled after the first semester of studies in May 2017 due to the non-payment of fees. The Applicant then enrolled in a Master of Professional Accounting at the Holmes Institute which commenced in July 2017. However, that enrolment was cancelled on 17 October 2017. From that point, the Applicant remained in continuous breach of his visa by not being enrolled in any registered course of study. As the delegate’s decision record notes, the Applicant eventually enrolled in a Graduate Diploma of Strategic Relationship course at Lennox Institute on 1 August 2018, following the Applicant receiving notice from the Department of Home Affairs (‘the Department’) advising of its intention to cancel his visa. As the delegate further noted, such action on the Applicant’s part did not cure the situation as, under condition 8202, the Applicant is also obliged to maintain an ongoing enrolment at an AQF level that is at the same level as, or higher than, as Masters course. A Graduate Diploma course sits at a lower AQF level.

4. The Department wrote to the Applicant on 25 July 2018, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

5. The Applicant provided a written response to the Department on 1 August 2018 (‘the Applicant’s NOICC response’). In that response, the Applicant appeared to acknowledge the breach of the visa condition. At the hearing before the Tribunal, the Applicant also admitted in evidence that he was in breach of condition 8202 for the period alleged by the delegate.

6. Based on the material available, the Tribunal is therefore satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202 of the visa.

Consideration of the Discretion to Cancel the Visa

1. 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. At the hearing before the Tribunal, the Applicant stated that he passed 2 out of 3 units in the first semester of his Masters of Information Technology course at Charles Sturt University. While the Applicant was unable to provide an academic record that could corroborate this evidence, ultimately the Tribunal accepted the evidence of the Applicant in this regard. Overall, his evidence was found to be truthful.

3. The Tribunal inquired of the Applicant as to why he did not pay his second semester fees at Charles Sturt for the Masters course. He said that, while he wanted to progress with IT, he had lent $8,000 to a friend who was also studying in Australia. The friend did not pay him pack. And so, according to the Applicant, he was unable to pay his second semester fees when they fell due. The Applicant stated that the $8,000 he had lent his friend was for his tuition fees. This money had been provided to the Applicant by his family in India. The Tribunal inquired as to why he would lend this money to his friend when his family had given it to him for his own fees. The Applicant stated that he trusted his friend and that this trust, with the benefit of hindsight, was breached. The Tribunal was not in any way satisfied with this answer in terms of providing a potential excuse for the Applicant failing to pay his fees at Charles Sturt.

4. As a result of having his enrolment cancelled at Charles Sturt, the Applicant then made efforts to enrol in another Masters level course. He was directed, upon advice from an education consultant, to the Masters of Professional Accounting course at the Holmes Institute. While the Applicant had no particular interest in accounting, he chose to enrol in that course anyway, for the sake of maintaining compliance with his visa conditions. He was conscious that he was not able to downgrade to a course occupying a lower level than the Masters level on the AQF scale.

5. However, he discovered that accounting did not interest him. And so he terminated his enrolment in that course on 17 October 2017. This is the point in time when the breach of his student visa started to accrue.

6. The Tribunal asked the Applicant what steps he then took to try and enrol in another course. He said that he knew his interest was in information technology. However, the Applicant admitted that he did not take any steps to enrol in another course for at least two months. The Applicant admitted that he was working during this time, utilising the 20 hours per week that his student visa entitled him to. However, it was clear from his evidence that he chose not to prioritise his studies. He was unable to provide any satisfactory explanation as to why he remained in continuous breach of his visa for at least two months.

7. The Applicant stated that he started to take positive steps towards re-enrolling in another course in December 2017. The Tribunal asked if he could produce any documentary evidence that could corroborate these claims. He was not able to do so. The Tribunal therefore does not accept this aspect of his evidence.

8. In the course of the hearing, the Tribunal asked if he could produce any documentary evidence that could demonstrate he made attempts to enrol in another course. Before the Tribunal, he searched his smart-phone for emails which evidenced the communications with course providers or education agents that he says he had. He found an email dated 13 March 2017, which did evidence efforts he was making to re-enrol in a registered course of study. He was unable to find any other correspondence earlier than that date.

9. So it would seem that there is no evidence demonstrating to the Tribunal’s satisfaction that the Applicant made any kind of meaningful effort to re-enrol in a registered course of study from 17 October 2017 to 13 March 2017. The Applicant was in continuous breach of his visa for 5 months without any efforts being made by him to cure the breach. Yet he continued to reap the benefits of Australia’s economy by working at relatively high wages (as compared to his home country), as he was entitled to do, for 20 hours per week. He chose to prioritise that work right entitlement, rather than the fundamental purpose for which the visa had been granted.

10. The Tribunal went to some lengths to ascertain whether there might have been some underlying cause of the Applicant’s decision-making processes that led to him choosing not to re-enrol in a course of study. The Tribunal inquired whether there might have been an underlying mental health condition that the Applicant was dealing with. But, on the Applicant’s evidence, a clinically diagnosable mental health condition was not affecting him.

11. In the end, the Tribunal is left without any satisfactory explanation for the Applicant’s decision to continue to breach condition 8202 of his student visa. It seems to have been a deliberate decision on the part of the Applicant. He must now face the legal consequences for his actions. In relation to the situation that has arisen, there is nobody is to blame but himself.

12. The Tribunal has taken into account that, if his visa is cancelled, the Applicant’s hopes of obtaining an Australian qualification will not be met. He will be disappointed, his family will be disappointed, and he will suffer some degree of financial loss and inconvenience for having to return to India without a Masters degree. However, this concern must be tempered with the breach of the most fundamental condition of his visa that continued for a relatively lengthy period.

13. The Tribunal notes that if the visa is cancelled, the Applicant may become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of visa conditions.

14. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations that would occur by the operation of s 140 of the Act if the Applicant’s visa is cancelled.

15. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements for him to depart Australia. He is a citizen of India and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

16. Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

17. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member