Bemidi (Migration)

[2020] AATA 2706

Bemidi (Migration) [2020] AATA 2706 (30 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sripal Reddy Bemidi

CASE NUMBER:  1802252

HOME AFFAIRS REFERENCE(S):          BCC2017/3915077

MEMBER:Genevieve Cleary

DATE:30 May 2020

PLACE OF DECISION:  Perth

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

Statement made on 30 May 2020 at 7:04pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – vague career plans – value of course – failure to pay tuition fees – length of non-enrolment – significant breach – 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 23 January 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 delegate cancelled the visa on the basis that the applicant was not at the time of cancelation enrolled in a registered course. 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 appeared before the Tribunal on 14 October 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. Prior to the hearing the applicant provided to the Tribunal the decision record of the delegate. At the hearing the applicant provided to the Tribunal:

   ·a document entitled ‘Supporting Statement Sripal Reddy Bemidi’ which is undated;

   ·Statement of Attainment dated 11 October 2019 showing that he had completed 6 units in the Diploma of Leadership and Management;

   ·a letter from Southern Cross School of Business confirming that the applicant was enrolled as at 11 October 2019 in the Diploma of Leadership and Management, commencing 8 July 2019;

   ·Confirmation of Enrolment of the Advanced Diploma of Leadership and Management 9C798178 commencing 12 August 2019, ending 7 February 2021, and

   ·Confirmation of Enrolment of the Diploma of Leadership and Management 9C795A61, commencing 9 July 2018, ending 5 July 2019.

6. On 29 October 2019, under cover of an email, the applicant sent electronic copies of:

   ·Confirmation of Enrolment of the Advanced Diploma of Leadership and Management AAEF0A83, and

   ·Confirmation of Enrolment of the Diploma of Leadership and Management AAEEEA17 commencing 9 July 2019.

7. On 31 October 2019 the applicant sent to the Tribunal, again:

   ·Confirmation of Enrolment of the Advanced Diploma of Leadership and Management AAEF0A83, and

   ·Confirmation of Enrolment of the Diploma of Leadership and Management AAEEEA17.

8. On 16 March 2020 the applicant sent to the Tribunal:

   ·A transcript of units completed for the BSB51918 Diploma of Leadership and Management Course, issued on 30 January 2020;

   ·A Diploma of Leadership and Management certificate, saying that he completed the course on 30 January 2020.

9. The Tribunal has also considered the Department file, including the Notice of Intention to Consider Cancelation (NOICC) dated 3 January 2018.  The applicant did not reply to that Notice.

10. 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

11. 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?

12. 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).

13. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.  The applicant agreed at the hearing before the Tribunal that on 23 January 2018 he was not enrolled in a registered course, and that in fact he had not been enrolled in a registered course between 5 May 2017 and July 2018.

14. 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

15. 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.’

16. The applicant attended a hearing at the Tribunal and the process of review was explained to him. It was explained that the Tribunal had the discretion to consider relevant factors in deciding whether to cancel or not to cancel the visa. I have carefully considered documents provided to the Tribunal by the applicant and the applicant’s evidence at the hearing.

    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

17. The applicant came to Australia to study a Masters in Information Technology and Enterprise Management at the University of South Australia.  He wanted to study that course in Australia to enhance his future employment prospects, and because his father had asked him to complete a higher education in information technology management to assist him if he worked in his father’s business; he also wanted to be a well-educated person.  He had completed a qualification in electronic communication at a university in Hyderabad, taking him 4 years.  He then worked in information technology at a company in India.  That was for one year from 2015. His parents were willing to fund his studies abroad. 

18. The course at the University of South Australia was going to take him 2 years, starting March 2016.  He started that course, however did not complete the first semester. 

19. The applicant commenced employment in Australia in May 2016 in Sydney.  This was at a 7-11 store.  He worked there for 9 months, and then returned to India, which is outlined below in these reasons.  When he returned to Australia there was no job for him there.  He recommenced work in Sydney at a cleaning company in September 2018. His friends and sister are also financially assisting him.  His sister used to live in Melbourne, studying a masters, supported by her husband.  His sister provides him with around $2000 per month for living expenses.  His friends assist him with other expenses.  He is expected to pay them back.

20. The applicant told the Tribunal that despite the cancelation he was determined to continue to study and return to India with an Australian qualification.  He said that if he is granted his visa he will complete courses in Leadership and Management.  He commenced the Diploma course on 9 July 2018, only enrolling in July 2018 when the family recommenced financially assisting him, after some financial issues which are set out below in these reasons.  The applicant produced to the Tribunal a Confirmation of Enrolment showing he was to commence on 9 July 2018.  However, he also produced a Confirmation of Enrolment showing he was to commence that same course exactly a year later.  The applicant told the Tribunal at the hearing that that was because the government changed the rules of the course, and he was required to re-enrol a year later in the same course, despite having, he said, completed and been awarded the Diploma in leadership and Management already.  He denied that it was because he failed the year, or because he did not in fact commence the course in 2018.  He agreed that he did not have, at the hearing, anything to show for the fact that according to him, he successfully completed the Diploma course he commenced in 2018.  He was not refunded his fees, despite the fact that he, according to him, was compelled to then repeat the whole course in 2019 because of a change in course requirements. 

21. The applicant was asked to provide to the Tribunal, within 21 days of the hearing, the qualification, or any indication that he had completed any units of the Diploma course in a course commencing in July 2018.  Despite providing a number of documents on 3 separate occasions after the hearing, both within the 21 days and beyond that, as has been set out above in these reasons, the applicant did not provide to the Tribunal any evidence that he has received a qualification from, or completed any units in, a course he commenced in July 2018.  As a result, despite the Confirmation of Enrolment, the Tribunal has no evidence before it that the applicant commenced any course in 2018, and cannot be satisfied that the applicant took up study again in 2018, or until July 2019.  As a result, while the applicant was enrolled in a course from July 2018, the Tribunal is not satisfied that he commenced studying that course until July 2019, adding a further year to the time in which he was not studying.

22. Once he has completed his studies, being the Advanced Diploma in Leadership and Management, he will return to his home country and look after his father’s business which is an importing/exporting business, dealing in clothes and other items.  He exports to another company in Madras, who sell the goods there.  The applicant will run the business. This will involve looking after the staff members.  He has 10-15 staff.   The applicant told the Tribunal at the hearing that he will manage everything, including the staff and the accounts.  The Tribunal asked him what that would entail, and he said this means managing the bills and upcoming payments.  When he returns, it was always understood that his father was going to show him how to do things in the business.  Despite asking for details, the applicant could only give vague details about the set up of the business, and what managing it would entail.  The Tribunal is not satisfied that the applicant has truly thought about what is required in running his father’s business, or what that business actually does. While this does not mean he is not genuine in his desire to assist his father, it does mean that the Tribunal is left with only vague details of the applicant’s plans and how his current study will assist his future intentions.

23. The applicant also said that his father was depressed and he wants him to return.  He is the only son.  The applicant said that before he left for Australia, his father told him to complete his masters in information technology because this would assist in his business. As he is around 60 now, he expected him to run the business with the information technology qualification. Therefore, he commenced the information technology course first, to accommodate his parents’ wishes, but the applicant said that his parents also understood the change in focus of his courses once he arrived in Sydney. 

24. Having carefully considered the applicant’s response and the other evidence before me, I am willing to accept that he initially came to Australia to study, and that the desire to obtain a qualification in Australia to assist in his father’s business upon his return is a compelling reason to study, and I give this some weight in his favour.

25. However, given the vague details about how the applicant’s studies will assist the applicant in running his father’s business, the Tribunal is unable to be satisfied that the current courses are, other than in a general sense, of any value to the applicant’s future.  This is particularly so given that the applicant’s evidence at the hearing was that his father had asked him to return with an information technology qualification to assist the business when the applicant left for Australia, but, on the applicant’s evidence, was happy with his change in course and level of qualification.  Because the Tribunal cannot be satisfied that the applicant’s current studies have but a general value to the applicant’s future, it cannot be satisfied that this gives the applicant, having been unable to complete the desired qualification in information technology and enterprise management, a compelling reason to remain in Australia, and this weighs against the applicant’s visa not being cancelled.

26. The applicant is in a relationship in Australia.  He met his partner here in Australia, but she is also from India. She is studying a Masters in Professional Accounting.  He has been in the relationship for 15-18 months.  She wants to become a ‘CPA’, and he said that will take her about another 12-15 months.  They will go back to their home country and get married once they have finished studying.  She is on a Student visa here. It is unclear that the applicant’s partner will remain in Australia and obtain her ‘CPA,’ and that it will take her a further 12-15 months.  Accordingly, in fairness to the applicant, I will assume that the applicant’s partner will be in a position to return to India once she has completed her Masters, which, the applicant said, should have been at the end of 2019.  Therefore, I accept that the applicant is not attempting to regain his Student visa so that he can remain with her here, and that weighs a little in his favour, but that factor does not outweigh the finding that he does not have any other legitimate compelling reason to remain in Australia.

    The circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

27. The applicant initially came to Adelaide with 2 of his friends. This was his first time away from home; he was homesick.  When he first came to Australia, he made some contacts via social media and as a result he moved into a house with another couple.  He stayed there for 30 days, that home only being temporary for him until he could find somewhere more permanent. He then moved to a place that the couple suggested.  This was a house where another person lived and he shared with him and the 2 others he had come to Australia with.  His 2 friends then moved to Melbourne. He stayed in the house for 15 days.  Because it was his first time in Australia he was struggling to care for himself and he told the Tribunal he could not find anywhere to eat.  He felt the lack of parental assistance as he had not lived away from home before. He struggled with transport as well.

28. He did not know how to find a place to eat after he moved to the new house.  He could not do his own shopping. Because of the changes in accommodation, his difficulty getting around and his difficulty feeding himself, he missed classes.   He became depressed.  He also struggled with education differences between what he was used to in his home country and in Australia, and could not complete the first semester of the masters course.

29. He contacted some friends in Sydney and decided to move to Sydney to obtain support from those friends.  He knew these friends because they were his classmates in India.  They had come to Australia before him. 

30. He contacted an agent in Sydney, who suggested that as he was struggling with the Masters course he should drop back to a diploma course, with a view to later progressing back to a masters level course.  He says that none of the agents he consulted warned him that dropping back to a diploma level course may mean he was in breach of his visa conditions.  He looked around for a college, and enrolled in Pacific College in Sydney, and commenced a Diploma in Business Administration in January 2017.  He did not complete that course.

31. While studying that course his father had some difficulties in his business so he returned to India, his father having asked him to return because his father was depressed.  They were going through a financial crisis.  He left Australia on 27 February 2017.  He told the college that that was what he was doing and he stayed in India for 40 days, returning on April 8, 2017.  He was then told that his fees were outstanding.  He asked for time to pay, however he says the college refused and cancelled his enrolment.  This occurred on 5 May 2017.  He therefore did not complete this course. Therefore, he had been in Australia for slightly less than a year, but had not completed a semester in any course.

32. Also at that time, he told the Tribunal, there were issues with Indian currency, and cash was not available from India.  He was relying on his family to pay for his housing and university costs.  He could not enrol elsewhere, as he could not pay fees.  At that time he considered going home, however his parents wanted him to complete a course here.  He then heard that his visa was cancelled, and thought there was no option but to appeal.

33. The applicant mentioned a number of times in his evidence that he was depressed. There is no evidence before the Tribunal on which the Tribunal could be satisfied that the applicant’s depression was such that he sought treatment for it, or that it was serious enough that he was physically, emotionally or mentally incapable of attending classes.  In fact, from the applicant’s evidence, at the heart of the cancelation itself was the fact that he was unable to pay his fees, and the college cancelled his enrolment.  Despite his being depressed, worrying about his father and his family’s finances and being unable to fend for himself alone, it seems that when he moved to Sydney he recommenced classes. Therefore, while I accept that he struggled emotionally and physically in Australia to begin with, I find that the circumstances in which the cancellation arose where predominately financial.

34. While his family’s finances are to a certain extent themselves out of his control, as is a country’s shortage of cash, any student who comes to Australia on a Student visa warrants that they are able to sustain the financial burden of education fees along with the cost of living away from home in a foreign country.  There is no evidence before the Tribunal as to the extent or reasons for the financial crisis of his family, other than there was hardship for the business, and indeed his sister has since stepped in to assist, in addition to the applicant’s employment, suggesting that there were funds available from time to time from a number of different sources.  Neither has the Tribunal been provided with any material regarding the timing or extent of the shortage of cash in India, and how that effected the applicant’s access to funds, other than the general fact that at some point he could not pay his fees.

35. The Tribunal is not satisfied that the failure to pay fees, leading to the cancelation of the enrolment, and therefore the cancelation itself, was out of the applicant’s control.  The applicant’s problems commenced when he arrived in Adelaide homesick and unable to look after himself, he says because he had never lived out of home before, resulting in him failing to progress in his course, and making a choice that the best way to deal with that was to move states.  That appears to have delayed his studies, and fees and travel costs had been spent, to no avail.  His return to India appears to have delayed his studies further, and while the Tribunal accepts that when a parent is ill, a child would want to return to see them, the applicant did not explain why he stayed for 40 days, thereby missing a relatively large portion of that semester of study, for which fees were not paid, and his studies were again delayed.  The Tribunal is satisfied that it was a culmination of those factors, in addition to the financial issues, which lead to his fees not being paid and his enrolment, and then visa, being cancelled. The choices he made, when faced with all the difficulties, were within his control.  Therefore, the delays and financial factors were, to a large extent, also within his control, and that weighs heavily against the visa not being cancelled.

1. The Tribunal is satisfied that the cancelation did not arise from a relationship breakdown, or that there is an issue of family violence.

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

2. So far he has paid $7,5000 for the course in which he is currently enrolled.  At the time of the hearing he had completed 6 of the units in the diploma course. 

3. The Tribunal accepts that the cancellation of a visa is disappointing and that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study. The Tribunal gives this consideration a little weight towards the visa not being cancelled.

   Past and present behaviour of the visa holder towards the Department and the extent of compliance with visa conditions

4. There is nothing before the Tribunal to indicate any adverse conduct by the applicant towards the Department and as such the Tribunal gives this some weight against cancelling the applicant’s visa.  However, the applicant did not reply to the NOICC. The applicant told the Tribunal at the hearing that he received an email from the Department in December 2017, however he was too scared to respond.  He spoke to an agent, but by the time he did so the agent told him he was out of time in which to respond.  The applicant told the Tribunal that he was not aware that the Department were considering cancelling his visa – none of the agents he had engaged told him that that was occurring, or warned him that it might.  If he had had had an opportunity to respond he said he would have told them about his father’s business crisis, and the hardship he had encountered. He also would have told them that he was going through his own hardship.

5. Neither did the applicant contact the Department, or ensure an agent did, when he was struggling with the masters course, or could not pay his fees, or when he knew his enrolment was cancelled.  As a holder of a Student visa, it is the applicant’s responsibility to ensure that he complies with conditions of the visa, or, if it appears that he may not be able to comply, to remedy the situation.  Rather than return home, enrol immediately in another course or at least liaise with the Department to ask for assistance, the applicant waited for over a year before enrolling again.  While the Tribunal accepts that the pressure of his family, not wanting to disappoint them, a lack of funds and possibly fear that the Department would not assist may have influenced the applicant to not take any action to attempt to head off the cancelation, the length and therefore extent of the breach is significant, and outweighs the reasons why he did not address the situation prior to the cancelation, or for 12 months after.

6. The Tribunal accepts that the applicant is now studying again, and that that shows a motivation to study.  The Tribunal accepts that the applicant requested the right to study on his Bridging visa. The applicant is thereby submitting that despite the lack of enrolment between May 2017 and July 2018, and the lack of re-enrolment in a masters level course, he should nevertheless be allowed to remain in Australia to continue to study.

7. However, the applicant came to Australia on the basis that he would be studying at the masters level, having been granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa to do so.  The applicant did not complete the masters course, and neither has he been enrolled in such a course since he moved from Adelaide to Sydney not long after his arrival in Australia. Despite being now enrolled in courses, he does not hold an enrolment in a masters level course, and therefore does not hold an enrolment in the higher education sector.  He told the Tribunal at the hearing that once he finishes the advanced diploma he will return home.  He will therefore, if that is the case, leave Australia without fulfilling that criteria on his original visa. He has therefore failed to maintain enrolment in the higher education sector, that in itself being a breach of his original visa.

8. The length of his non enrolment in any course is lengthy, being over 12 months.  Adding to the weight of that breach is the fact that for most of the time while he has been in Australia, he has failed to maintain an enrolment in a higher education sector course, and will leave Australia, on his current enrolments, without achieving a course at that level.  In addition, as the Tribunal has found, it cannot be satisfied that he was actually studying the Diploma in Leadership and Management in 2018 and the first half of 2019, although it is accepted that he had a valid Confirmation of Enrolment at that time.  All of this results in a finding that the breach is significant, and weighs heavily on the Tribunal’s discretion to cancel.

9. While his family situation cannot be attributed to him, and it is unfortunate that he struggled being away from home for the first time and became somewhat depressed, he is, as the holder of the Student visa, responsible for being able to care for himself, and being able to pay his fees, or contact the Department or obtain the assistance of an agent if he could not.  While his family’s struggles, and his re-enrolment in at least some type of course, in particular, weigh in favour of the visa not being cancelled, they do not outweigh the extent of the breach. 

   Whether there would be consequential cancellations under s.140

10. This factor is not relevant to this applicant.

    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

11. If the current visa is cancelled, this will result in the following:

    a.The applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

    b.The applicant will have limited options to apply for further visas in Australia;

    c.The applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) 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 Requirement 4013 to be met.

12. I give little weight to this consideration in favour of the applicant because:

    ·These are the intended consequences of the legislation when a visa is cancelled under these grounds;

    ·It reflects the seriousness with which the Department takes this type of cancelation ground;

    ·The applicant will be eligible to apply for a bridging visa while he makes arrangements to depart Australia and therefore the likelihood of detention is only in the event that he does not co-operate in applying for a bridging visa.

    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

13. In this case it does not appear that this consideration is relevant as the applicant did not indicate that there was any reason he cannot return to India and he has not made any claims which would relate to this consideration. The Tribunal places no wait on this in favour of the applicant.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

14. This factor is not relevant to this applicant.

    Any other relevant matters.

15. There are no other relevant factors or matters.

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

    DECISION

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

    Genevieve Cleary
    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.