Bhutani (Migration)

Bhutani (Migration) [2020] AATA 4209 (25 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tanishq Bhutani
CASE NUMBER:  1715752
HOME AFFAIRS REFERENCE(S):          BCC2017/1570444
MEMBER:Frank Russo
DATE:25 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 25 January 2020 at 8:52pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – non-appearance before the Tribunal – application dismissed – reinstatement of application sought – backdating of medical certificate – request for Tribunal to disregard submission sent – ground for cancellation – enrolment – deferral ceased – not enrolled in a registered course – consideration of discretion – circumstances giving rise to breach – non-payment of fees – demonetisation process in India – insufficient evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 12 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study from 20 February 2017 until the delegate’s decision on 12 July 2017. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant is a 26-year-old Indian national.
The application was first listed for hearing on 14 August 2019. On 5 August 2019 the Tribunal received a request from the applicant for postponement of the hearing on the grounds that earlier on 5 August 2019 an inappropriate submission had been made on his behalf by a migration agent who was not on the record as representing him. The applicant requested further time to prepare his submissions to the Tribunal. Having reviewed the contents of the submission received earlier on 5 August 2019, the Tribunal agreed to the request to postpone the hearing.
The application was re-listed for hearing on 24 September 2019. Following the applicant’s non-appearance at this hearing, on 25 September 2019 the Tribunal dismissed the application under s.362B(1A)(b) of the Migration Act 1958 (the Act).
On 30 September 2019 the applicant requested reinstatement of the application for review on the grounds that he was unable to attend the hearing due to asthma and respiratory problems. He claimed that on the day of the hearing he took prescription medication and rested. The request for reinstatement was accompanied by a medical certificate issued by Dr Muhammad Virk of Advanced Medical Centre, Auburn on 26 September 2019, which was backdated to certify the applicant as unfit for duties from 24 September to 26 September 2019. The request was also accompanied by a copy of a script for asthma medication issued by Dr Virk. Whilst the Tribunal noted concern about the backdating of the medical certificate and the non-compliance of the certificate with aspects of the Tribunal’s Practice Direction in Migration and Refuges Matters, dated 1 August 2018, the Tribunal also noted the applicant’s provision of additional documents and a telephone call to the Tribunal on 23 September 2019, which suggested the applicant had intended to appear before the Tribunal, and on this basis the Tribunal reinstated the application for review.
The application was re-listed for a hearing on 24 October 2019. Following the applicant’s non-appearance at this hearing the Tribunal again dismissed the application under s.362B(1A)(b) of the Act.
On 31 October 2019 the applicant requested reinstatement of the application, and again cited an asthmatic/respiratory condition as the reason for his non-attendance at the hearing. The applicant attached a medical certificate from Dr Virk, dated 24 October 2019, certifying the applicant as unfit for normal duties from 24 October to 25 October 2019. On 5 November 2019 the Tribunal reinstated the application for review.
The application was re-listed for a hearing on 19 November 2019. The applicant appeared before the Tribunal on 19 November 2019 to give evidence and present arguments.
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
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.
In addition to his application form, the applicant provided the Tribunal with the following additional documents (multiple copies of some documents were provided):
a.Copy of the applicant’s Indian passport;
b.Undated statement addressed to the Tribunal, received by the Tribunal on 23 September 2019;
c.Copies of the Diploma of Management and Advanced Diploma of Management issued by Academies Australasia on 4 April 2016;
d.Confirmations of Enrolment (CoE) for the Bachelor of Commerce at Torrens University for the period 22 February 2016 to 16 December 2018, created on 9 March 2016, and for the period 21 February 2017 to 12 May 2019, created on 26 September 2016;
e.Undated screenshot from ‘My Torrens’, containing the applicant’s interim Course Results for his enrolment at Torrens University;
f.Unsigned and undated ‘formal complaint form’ sent by the applicant to Torrens University;
g.Undated statement by the applicant to Administration, Torrens University, in response to enrolment cancellation warning letter sent by the university on 16 March 2017;
h.Email correspondence between the applicant and staff of Torrens University, dated from 2 to 4 August 2016, regarding group assignments and communication issues with Torrens University;
i.Offer of enrolment letter from Holmes Institute for the Bachelor of Professional Accounting, dated 7 July 2017; and
j.Copy of the applicant’s secondary school examination certificate, 2009;
In response to a letter from the Tribunal dated 19 November 2019, inviting the applicant to provide further information, the applicant provided an email response dated 29 November 2019 which contained submissions, as well as the following attachments:
a.Cancellation warning email from Torrens University to the applicant, dated 16 March 2017;
b.Reply from Torrens University to the applicant’s formal complaint form; and
c.Copy of the applicant’s Bridging Visa class E, granted by the Department on 9 August 2017.
The Tribunal has read and had regard to these documents in making its decision. The Tribunal also notes and has regard to the documents contained within the Tribunal file and on the Department’s file.
The Tribunal noted at the hearing the applicant’s request for postponement of the first scheduled hearing, received by the Tribunal on 5 August 2019. In that request, the applicant also requested that the Tribunal disregard the submission sent from his email account earlier on 5 August 2019, claiming that the submission had been sent fraudulently. In his second email of 5 August 2019 the applicant stated that he had attempted to change his migration agent. He stated that he came across a ‘student consultant’ who indicated s/he would act as a ‘mediocre person’ (at the hearing the applicant confirmed that he meant ‘intermediary’) between the applicant and a migration agent, who would prepare a submission on the applicant’s behalf, but not go on the record as his appointed migration agent. The applicant stated that the migration agent sent an email to the Tribunal from the applicant’s email account. The applicant stated that he found the submission to be inappropriate and unsupportive of his case, and claimed that he was the victim of fraud and had found himself in a trap.
At the hearing the applicant confirmed that it was this first submission received by the Tribunal on 5 August 2019 that he wished the Tribunal to disregard, and that there are no other documents which he requests the Tribunal disregard. He stated that he met the migration agent in a café and the agent asked him for his email ID, and without his awareness the agent sent the statement to the Tribunal, which he later reviewed and found to be inappropriate.
The Tribunal notes that the first submission received from the applicant on 5 August 2019 contains a Word document which purports to be a statement from the applicant. The statement is not signed by the applicant. The Tribunal notes that the statement commences in the first person, but from point 9 onwards it refers to the applicant in the third person. The Tribunal also notes that the points made in third person are not in the same voice as the earlier points and contain several general statements which are not particularly useful, such as point 12, which asserts that ‘Delegates (sic) misuse power and gave unfavourable decision.’ The Tribunal is satisfied that this statement contains statements which were not made by the applicant and the statement as a whole was not read back to the applicant before it was sent to the Tribunal. The Tribunal therefore disregards this statement and does not take it into consideration in making its decision.
The applicant confirmed at the hearing that he had read and understood the delegate’s decision, a copy of which he had provided to the Tribunal.
Did the applicant comply with Condition 8202?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
At the hearing the applicant gave evidence that he arrived in Australia on 19 November 2014. He stated that he was enrolled in a Diploma of Business Management and then an Advanced Diploma of Business Management at Academies Australia, both of which he completed. He stated that these courses were intended to progress to a Bachelor of Commerce at the University of Canberra, but he obtained a release letter from the University of Canberra, and instead enrolled in the Bachelor of Commerce at Torrens University’s campus in Sydney. He stated that he commenced at Torrens University around March 2016, and that he made this change to his education provider because he did not want to move to Canberra because of his asthma, stating that it is fairly cold in Canberra.
The applicant gave evidence that he completed two trimesters at Torrens University, but that he had various disputes and problems with the university during this time, which included issues with the student desk not being available when he called and his emails being unanswered by staff of the university.
The applicant stated that after finishing two trimesters he was facing some personal issues and applied to have a trimester off. He stated that his brother-in-law in India was receiving treatment for cancer and he was also homesick and wished to return to India to see his family. He stated that initially Torrens University refused his request, however after he provided medical certificates and a travel itinerary for his trip to India, the university granted a deferral of his studies from 26 September 2016 to January 2017, which included the holidays between the trimesters.
The applicant told the Tribunal that he was meant to recommence his studies at Torrens University in February 2017. He stated that during this break he spent approximately one-and-a-half months in India, and then after returning to Australia, he went to Melbourne for about two-and-a-half months as he has relatives there.
The applicant told the Tribunal that on 8 November 2016 the Indian government commenced a demonetisation process, as a result of which he was unable to get money for his course fees for the trimester beginning in February 2017. He stated that when he arrived back in Sydney in February 2017 he received a notice from Torrens University of an intention to cancel his enrolment. The applicant stated that following this the university gave him a chance to resolve the issue by filling out a formal complaint form and providing a statement regarding why he had not been able to enrol, however he was still unable to resolve the issue of funds. He told the Tribunal that it was nearly the end of March 2017 when the demonetisation process ended and his family was able to transfer funds to him, but by then it was too late to enrol in the trimester. He told the Tribunal that Torrens University did not accept his statement and reported him to the Department.
The applicant confirmed in his evidence that he accepts that he had been granted a deferral by Torrens University from 26 September 2016 until 20 February 2017 and that he was to return to the university by 20 February 2017. He accepted that he had not been re-enrolled in his course of study from 20 February 2017, when his deferral ceased, and accepted that he was therefore in breach of the enrolment condition of his Student visa after this time. The applicant confirmed in his evidence that he has not been enrolled in another course of study in Australia since that time.
Although the Tribunal has on file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database, it noted at the hearing that it did not need to provide the applicant with a copy and would not be relying on that information as the Tribunal considered the information contained in his PRISMS record to be consistent with the account he gave of his enrolment history in his oral evidence. The Tribunal does not rely on the information contained within the PRISMS record.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study from 20 February 2017, when his deferral from Torrens University ceased, until the date of the delegate’s decision on 12 July 2017. Accordingly, the applicant has not complied with condition 8202(2).
Consideration of the discretion to cancel the visa
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 Procedural Instruction ‘General visa cancellation powers’.
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
The applicant told the Tribunal that his reasons for travelling to Australia were to gain a tertiary education. He stated that he completed high school in India, but had not commenced any tertiary studies prior to his arrival in Australia. The applicant provided a copy of his high school examination certificate from 2009.
The applicant told the Tribunal that his father and uncle run a ‘cloth merchant’ business, which he wishes to ‘empower’ with knowledge which he will gain from his Bachelor of Commerce studies. He stated that if his visa is not cancelled he intends to study the Bachelor of Commerce at Holmes Institute. He stated that he has 16 subjects left to complete to obtain this course. When questioned how he had arrived at this figure, he stated that after his enrolment at Torrens University was cancelled he had attempted to gain a CoE for the Bachelor of Commerce at Holmes Institute. Holmes Institute counted that he had 16 subjects left to complete after course credits were taken into account. He stated that he had passed two subjects at Torrens University and failed three subjects because of what he described as misconceptions by Torrens University. As to his future plans the applicant stated that he intends to complete the Bachelor of Commerce at Holmes Institute and then assist with his family’s business, and that he has no other plans besides this.
The Tribunal questioned the applicant as to whether he had attempted to enrol in any courses after February 2017. He stated that after February 2017 he was still dealing with Torrens University’s decision to cancel his enrolment, and as a result of that process he didn’t obtain an offer to enrol from Holmes Institute until he received the Department’s Notice of Intention to Consider Cancellation (NOICC) of his visa. He stated that soon after this his Student visa was cancelled and he was granted a Bridging visa Class E. He stated that he was then informed by Holmes Institute that they could not provide him with a CoE because of his Bridging visa holder status, which would affect the college’s ratings. When asked whether he had attempted to obtain enrolments with any other colleges, he stated that he had tried through an education consultant, but was unable to obtain them because of his visa status. He stated that although he may have been able to obtain an enrolment at smaller colleges, he was concerned about enrolling with such colleges because of his experiences at Torrens University, and that he would prefer to enrol at Holmes Institute. When asked whether he had any evidence of enquiries made to other colleges, he stated that he did not.
The applicant stated that at the time of the hearing he did not have a ‘fixed job’ and that for the past few years he has not worked much because of his health problems and because of the trauma of the visa cancellation. He stated that he has worked a casual job in a car wash, as well as a casual job delivering food, but each of these jobs have involved minimal hours. He stated that with the car wash he is not called in all the time and he has worked a total of one month in 2019. He stated that with the food delivery job he sometimes works two to three hours per day and on some weekends, and that he has worked a total of 20 days in 2019. He stated that he supports himself with some of his savings as well as some of what he earns, as well as receiving help from relatives in Melbourne.
The Tribunal noted at the hearing that information contained on the Tribunal file was provided by the Department with a non-disclosure certificate preventing the provision of the documents to the applicant. Section 375A of the Act provides that where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than the member of the Tribunal constituted to the review.
The tribunal has considered the validity of certificate, which was issued by the Department under s. 375A. The Tribunal is satisfied that the Department has established a credible reason why access to the information is covered by the s.375A certificate, dated 29 April 2019, would be contrary to the public interest, as the particulars of the information includes information which may contain personal identifiers and personal information. The Tribunal finds the certificate issued under s.375A of the Act is valid. The Tribunal determined it was appropriate to nonetheless provide the applicant with the essence of the information covered by this certificate. The Tribunal advised the applicant about the information attached to the certificate, which included allegations that the applicant does not attend college, he has been working illegally and [Allegation 1]. [Allegation 1] is not directly relevant to the applicant’s purpose for remaining in Australia, though it may be relevant to the extent to which he has complied with the conditions of his visa, and so the Tribunal addresses this aspect of the information in relation to that consideration. The Tribunal considers that the allegations that the applicant has not been attending college and has been working illegally may be relevant to the applicant’s purpose for remaining in Australia, and so considers this information now.

The Tribunal informed the applicant that it would not be relying on the allegation regarding him not attending college, as on the applicant’s own evidence he has not attended college since September 2016. The information attached to the non-disclosure certificate about his non-attendance at college is already known to the Tribunal and is contained in a number of other folios within the Tribunal file.
As to the allegation that the applicant has worked illegally, the Tribunal put the allegation to the applicant and gave him an opportunity to respond. The applicant reiterated his evidence that he has only worked casual shifts and that he has not breached the work conditions. The Tribunal has considered the information provided with the non-disclosure certificate, but considers the allegation to be general and to not contain any specifics which would support the allegation which has been made, such as a date range when the breach is alleged to have occurred or the name of the applicant’s place of employment. The Tribunal therefore does not give any weight to the allegation in terms of assessing the applicant’s purpose for remaining in Australia.
The Tribunal considers that there is insufficient information to indicate that the applicant’s purpose for remaining in Australia is for a purpose other than study. The applicant’s evidence was that his purpose for remaining in Australia is to complete his Bachelor of Commerce qualification. The Tribunal notes however that the applicant has not been enrolled in a course of study since his deferral from Torrens University expired on 20 February 2017, a period of close to three years. In assessing the weight to be given to this consideration the Tribunal takes into account the applicant’s evidence of his attempts to obtain a CoE at Holmes Institute, however notes that the CoE offer letter from Holmes Institute was issued on 7 July 2017, after the NOICC issued by the Department on 30 June 2017. The Tribunal has considered the applicant’s evidence that he had attempted to obtain a fresh CoE before the issue of the NOICC and that dealing with an education agent and obtaining a CoE can take time, however the Tribunal considers it more likely that the applicant has attempted to obtain a CoE from Holmes Institute after receiving the NOICC, which appears to have prompted the applicant to take action, including obtaining a referral from his general practitioner to a psychiatrist on 4 July 2017, a copy of which is contained on the Department’s file. The Tribunal also notes the applicant’s evidence that the NOICC issued by the Department on 30 June 2017 was the Department’s second attempt at issuing a NOICC, following an earlier attempt sent to the wrong address, which the applicant was informed of in a letter from the University of Canberra on 21 June 2017.
The Tribunal also notes the applicant’s evidence that he was still dealing with his complaint process with Torrens University in March 2017, which is why he claims he did not seek a fresh CoE sooner, however the Tribunal considers that the applicant had sufficient time to take steps to obtain a fresh CoE prior to the issuing of the NOICC on 30 June 2017. While the Tribunal accepts that the applicant’s purpose for remaining in Australia is principally for the purpose of study, there is no documentary evidence to support the applicant’s claims that he attempted to obtain a fresh CoE prior to the issue of the NOICC, and the applicant has not subsequently been enrolled in a course of study since the cancellation of his enrolment. Therefore the Tribunal overall gives this consideration only a little weight against cancelling the visa.
The extent of compliance with visa conditions
The applicant was not enrolled in a course of study from 20 February 2017, the date when his deferral from Torrens University ended, until the date of the delegate’s decision on 12 July 2017, a period of just under five months.
As noted above, the Tribunal file contains a non-disclosure certificate containing information which includes allegations that the applicant does not attend college, has been working illegally and [Allegation 1]. As noted above, the Tribunal gave the applicant the essence’ of the information contained in the document attached to the non-disclosure certificate.
As noted already, there is other evidence before the Tribunal that the applicant has not been attending college as he has not been enrolled in a course of study since his deferral from Torrens University ended on 20 February 2017, and the Tribunal therefore does not rely on this information contained in the document attached to the non-disclosure certificate. Similarly, the allegation that the applicant has worked illegally was general and did not contain specific details to support the allegation, and accordingly the Tribunal does not rely upon this information.
As to [Allegation 1], the Tribunal put this allegation to the applicant and gave him an opportunity to respond. The applicant stated in response [response redacted].
The Tribunal notes that while the applicant has admitted in his evidence [a specified incident], on his evidence he received a warning letter and was not charged. The Tribunal notes that the allegation provided in the document covered by the non-disclosure certificate is very [general]. Further [details] have not been provided. The Tribunal therefore does not rely on the information attached to the non-disclosure certificate. There is no evidence before the Tribunal to suggest that the applicant has been charged or convicted of any [related offences], other than the applicant’s evidence that he received a warning letter from the police. Overall the Tribunal accepts that there is no convincing evidence before it of the applicant’s breach of the conditions of his visa, other than the breach of his enrolment condition. The Tribunal therefore gives this consideration a little weight against cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
When asked about the hardship which may be caused by the cancellation of his visa, the applicant stated that he has invested five years of his life in his studies in Australia, and this investment will all be ruined if his visa is cancelled. He stated that he will not get this time back. He stated that the hardship would include that he would not be able to gain a degree from Australia, which would be useful for his future business, and that without it he won’t be able to increase his father’s business and make it more profitable. He stated that he could have built up things financially over the past five years if he had not come to Australia and that he is now 26 years old and getting old according to Indian traditions. He stated that in terms of hardship to his family, it is just his father left. He stated that if he can’t do much with his life, his father would also have to face things with him.
The Tribunal accepts that the applicant would suffer some hardship if the visa is cancelled. Accordingly the Tribunal gives this consideration some weight against cancelling the visa.
Circumstances in which the ground of cancellation arose. Are there any extenuating circumstances beyond the visa holder’s control that led to the grounds existing?
As noted above, the applicant gave evidence that after completing two trimesters at Torrens University he applied for a deferral of his studies, which was granted from 26 September 2016 to 20 February 2017. He told the Tribunal that on 8 November 2016 the Indian government commenced a demonetisation process, as a result of which he was unable to get money for his course fees for the trimester beginning in February 2017. He explained that the Indian government made changes to major currency notes and that while this process was underway people were unable to transfer funds. He stated that after his return to Australia he spent two-and-a-half months with his relatives in Melbourne, and that he tried to contact Torrens University by telephone to raise the issue he had with the payment of his course fees for the trimester, but was unable to get through to the university or obtain advice as to what he should do. He stated that when he arrived back in Sydney in February 2017 he received a notice from Torrens University of an intention to cancel his enrolment (the Tribunal notes that the actual date of this warning letter is 16 March 2017).
The applicant stated that following this the university gave him a chance to resolve the issue by filling out a formal complaint form, however he was still unable to resolve the issue of funds. He told the Tribunal that it was nearly the end of March 2017 by then and it was too late to enrol in the trimester. He told the Tribunal that Torrens University did not accept his statement and reported him to the Department.
The applicant told the Tribunal that he had experienced communication problems with Torrens University prior to February 2017, in particular instances where he had sent emails to staff and received no response or where he tried to contact the university’s student services, but received no response. As evidence of this the applicant provided email correspondence between himself and staff of Torrens University dated from 2 till 4 August 2016, regarding submission of a group assignment and communication issues.
The applicant provided the Tribunal with a copy of an undated and unsigned complaint form which he states he provided to Torrens University in response to the notice of intention to cancel his enrolment received on 16 March 2017. The applicant also provided a copy of a statement which is addressed to Administration at Torrens University, which explains the circumstances as to why he was unable to enrol. In this statement he states that he was unable to enrol because of the demonetisation process in India, specifically that he could not receive any funds transferred from India due to the ‘income review process’. The applicant stated that the process began in November 2016 and was ending that day, on 31 March 2017. He stated that his family tried to send him through money, however it did not go through and it resulted in the seizing of their accounts. He stated that he was in Melbourne at the time and had tried many times to contact student services by telephone, but received no response. He raised that this was not the first time he had experienced difficulties in reaching student services. He stated that the demonetisation process in India is ‘world-wide famous’ and that he does not have any documentation to support his case. He stated that now the demonetisation process is over his family has recovered their money, although he believed it would be too late to enrol in the trimester. He stated that he wished to recommence his studies.
In an undated statement addressed to the Tribunal (received by the Tribunal on 23 September 2019), the applicant states as follows:
After coming back from deferral I was supposed to enrol in February 2017. I arrived back from India to Melbourne to my knowns place where I resided for a while, before coming back to Sydney. During my deferral period, a major demonetisation process happened in my home country, which affected me very badly. None of us were allowed for the foreign transactions without verification. The verification process was very lengthy as it was throughout the country hence taking longer time frames for the transactions. Our accounts and funds were being verified, and just a little money for day to day expenses was being exchanged through banks for everyone. My family being suffered through this process couldn’t help me with the funds for my semester fee at that time and this process was expected to complete by 31st of March 2017. I tried calling student services at my university, unfortunately there was no answer at all times, hence problem from the first two semester strikes again. As mentioned earlier I was not in Sydney so I couldn’t go in person neither I could write to anyone being unsure of who to write, if someone could help me through student services I would have definitely wrote to the concerned staff about my funding issues seeking some kind of assistance with it.
The Tribunal questioned the applicant whether he had any documentary evidence to support his claim that his family was unable to transfer funds to him as a result of the demonetisation process. The applicant confirmed that he did not have any such evidence as his family made requests in person for the transfer of funds.
The applicant told the Tribunal at the hearing that the only thing which affected his ability to enrol was the demonetisation process and this is the reason why his enrolment was cancelled. He confirmed that the only circumstance preventing him from enrolling was the demonetisation process and his inability to pay his fees.
The Tribunal questioned the applicant as to why he had not raised the funding issue in his response to the NOICC, which he provided to the Department on 6 July 2017. The applicant stated that he had received advice from a migration consultant who advised him not to tell the Department about his funding issues, and stated that he was misguided by her. When asked what reasons he gave to the Department for his inability to enrol, he stated that he had told the Department that it was because of trauma and he was in a state of depression. The Tribunal questioned whether the applicant had misinformed the Department, to which he responded that everything he had told the Department was true, as it was all happening. He stated however that the funding for his course fees was the real issue which prevented him from enrolling.
The Tribunal questioned the applicant whether he claims that he was depressed at the time and not mentally prepared to recommence his studies. He responded that if he had the money at the time he would have enrolled. He stated that his mental state at the time would have affected his grades, but the problem preventing him from enrolling was the funding issue. The Tribunal questioned the applicant as to whether he has received any treatment for a mental health condition. The applicant confirmed that he has not received treatment for any mental health condition in Australia, only for asthma. He stated that while he received a referral from his general practitioner to a psychiatrist in July 2017, he did not see the psychiatrist as the waiting period was over two months.
The Tribunal questioned the applicant as to events which occurred after he received Torrens University’s notice of intent to cancel his enrolment on 16 March 2017. He told the Tribunal that he wrote a formal complaint to Torrens University, a copy of which he provided to the Tribunal. He stated that the university declined his request around April 2017 and reported him to the Department.
On 19 November 2019 the Tribunal sent a letter to the applicant inviting him pursuant to s.359(2) of the Act to provide information relating to his circumstances, in particular to provide a copy of the cancellation warning letter sent by Torrens University on 16 March 2017, as well as certain other documents. This cancellation warning letter, sent by the university by email, warned the applicant that his enrolment with the university will be cancelled as he had not returned after a scheduled break. The letter informed the applicant that he had 20 working days to lodge an appeal and that he may continue his studies until 20 days has passed without lodging an appeal or until any such appeal was unsuccessful.
The Tribunal accepts that the demonetisation process in India occurred and accepts that this process may have caused difficulties and delays in transferring money out of India. However, after careful consideration of the applicant’s evidence and his submissions to Torrens University and the Tribunal, the Tribunal does not consider that there are extenuating circumstances or that the circumstances were beyond the applicant’s control. The applicant has provided no documentary evidence to support his claim that his family attempted to transfer money out of India, or that they were unable to do so because of the demonetisation process. The applicant told Torrens University in his submission of 31 March 2017 that he had no evidence in support of this claim as to the effect of demonetisation, and he made the same statement to the Tribunal. According to the applicant’s written statement to Torrens University, his family attempted to transfer money, but this resulted in the seizing of bank accounts. He stated that by the date if this statement his family had recovered the money which had been seized. The Tribunal considers that if the applicant’s family’s bank accounts had been seized, there would be documentary evidence of such seizure. Similarly, if his family were satisfied that they had recovered the seized funds, there would similarly be documentary evidence to support this.
The Tribunal also notes that in his submission to the Tribunal, the applicant states that the demonetisation process resulted in a requirement for verification for foreign transactions, as well as a longer verification process. The applicant’s evidence in this submission is not that funds could not be transferred overseas, but that verification was required, and that such verification could be lengthy. On the applicant’s evidence the demonetisation process commenced in November 2016 and he was required to re-enrol in February 2017, which provided the applicant with a period of at least three months for the transfer of funds. The Tribunal also notes that the applicant visited India in November 2016, during his deferral period, and therefore considers that the applicant would have been on notice of the demonetisation process, as well as been physically present in India to assist his family with the verification process. Accordingly the Tribunal gives little weight to the applicant’s claims that the demonetisation process was the cause of his inability to enrol. The Tribunal finds that the applicant had sufficient time to organise the transfer of funds, and also considers that if this was the case, it was open to the applicant to apply for a further deferral of his studies.
In any case, having genuine access to funds is a requirement for the Student visa. The applicant would have been aware that he was required to pay course fees and provided a financial guarantee to the Department before his visa was granted. The Tribunal considers the circumstances which the applicant has outlined in his evidence are not exceptional or beyond the visa holder’s control.
The Tribunal notes the applicant’s evidence that he had attempted to contact student services at Torrens University when he was unable to pay his course fees in February 2017, but notes that the applicant has not supplied any documentary evidence to support this claim, other than complaint emails about communications dated August 2016. The Tribunal notes that the applicant had already been granted one trimester of leave immediately prior to this, and therefore should have been aware of the administrative processes for contacting the university, including seeking a deferral. The Tribunal also notes that the applicant sent emails regarding the communications issues he experienced in August 2016, and it could be expected that he would do the same in February 2017 if he was unable to get in touch with the student services desk about his enrolment. The applicant at the time held a Student visa which contained a condition that he maintain enrolment in a registered course of study. The Tribunal is of the view that it was within the applicant’s ability to take further steps to address his enrolment situation, particularly given he was the holder of a Student visa granted primarily for the purpose of study.
The Tribunal has considered the applicant’s evidence that he was unable to go into Torrens University in person in February 2017 because he was in Melbourne at the time, hence why he called student services. The Tribunal does not consider this to be a sufficient explanation, noting that the applicant’s deferral had been approved up until 20 February 2017, after which he was required to return to his studies in Sydney. The applicant has given no evidence of attempts to contact Torrens University about his funding and enrolment issues, other than his of his attempts to contact student services by telephone from Melbourne in February 2017. The Tribunal notes that Torrens University’s letter informing the applicant of the intent to cancel his enrolment is dated 16 March 2017, close to a month after the applicant was required to recommence his studies. The Tribunal considers that the applicant has provided insufficient explanation as to why he could not personally attend Torrens University prior to 16 March 2017, given the enrolment requirement and the fact that he held a Student visa which required him to maintain his enrolment.

The Tribunal also notes that the letter of intent to cancel the applicant’s enrolment gave the applicant the option of appealing the decision within 20 days, during which time he could continue to attend his course, until his enrolment was cancelled. On the applicant’s evidence, his last day of study was in September 2016, and he did not take up this option.
The Tribunal also notes that while the university indicated the applicant could lodge an appeal to its decision, the applicant instead lodged a complaint form, to which he attached an explanation for his inability to enrol in February 2017. Torrens University, in its response dated 4 April 2017, appears to have addressed both the complaint as well as treated this correspondence from the applicant as a request for reinstatement of his enrolment.
In an email to the Tribunal dated 29 November 2019, the applicant notes that the university gave three reasons for its decision rejecting his appeal, and claims that the university erred in its reasoning. The university’s response dated 4 April 2017 states:
There was no evidence other than your claim that you tried to contact student services. If you were in Sydney to study you should have come to campus to explain your special circumstance and we might have been able to find a solution. The onus is on the student to provide evidence of special and compelling reasons. As an international student it is not acceptable to stay in Australia without studying from November 2016 till T2/2017.
While the Tribunal considers the university’s statement that it was unacceptable for the applicant to stay in Australia without studying from November 2016 till T2/2017 to be flawed, given the applicant had been approved to defer his studies from 26 September 2016 to 20 February 2017, the Tribunal considers the other reasons given by the university to be reasonable. The Tribunal notes the applicant’s submission that he was in Melbourne at the time, and therefore unable to attend the student services desk in person, but has already addressed this issue in the reasons provided above. The Tribunal considers that the applicant’s deferral was approved until 20 February 2017, and after this date he was expected to be in Sydney to recommence his studies, in the absence of another deferral being approved.
The Tribunal has also considered the applicant’s claims that he was suffering depression and was in a state of trauma, as claimed in his response to the NOICC. The Tribunal notes however that the applicant has not received any treatment for a mental condition whilst in Australia and there is no documentary evidence of him suffering any medical conditions, other than the referral letter to a psychiatrist prepared by his general practitioner on 4 July 2017, after receipt of the NOICC. On the applicant’s own evidence he did not see the psychiatrist as the wait was over two months. The Tribunal accordingly gives no wait to these claims, and notes that in any case, the applicant confirmed at hearing that although the trauma and depression which he claims to have experienced may have affected his ability to study, they were not the reason why he was unable to enrol, which he claims was due to the demonetisation process.
Overall the Tribunal considers that there is little in these circumstances which were beyond the applicant’s control. The applicant was required to be present in Sydney by 20 February 2017 to recommence his studies, but on his evidence he did not become aware of the intention to cancel his enrolment until he received the letter from Torrens University warning of cancellation on 16 March 2017. The Tribunal does not consider the applicant’s claims that he attempted to call the student service desk of the university a number of times to be sufficient, having regard to the applicant’s responsibilities to maintain enrolment under his Student visa. As noted already, the Tribunal considers there to be insufficient evidence that the applicant’s ability to enrol was affected by the demonetisation process, and even if this were the case, it is a requirement for the Student visa that an applicant have access to sufficient funds. Accordingly the Tribunal gives this consideration no weight against cancelling the visa.
Past and present behaviour of the visa holder towards the Department
The applicant gave evidence that he was not aware of any issues in terms of his past or present behaviour towards the Department. There is no indication of any issues contained on the files. The Tribunal notes however the applicant’s evidence at hearing that in his response to the NOICC he did not tell the Department the full reasons why he was unable to enrol in February 2017. He gave evidence that on advice from an education agent he did not mention the funding issue he was experiencing at the time. The applicant however stated that the reasons he gave to the Department were true, namely the trauma and depression which he claims he was experiencing at the time, however on their own they did not prevent him from enrolling, and the fundamental reason for him not enrolling was the lack of funds to pay for his course fees due to the demonetisation process. While the Tribunal considers this to be evidence that the applicant has not been entirely transparent with the Department in the information he has provided, the Tribunal notes the applicant responded to the NOICC and appears to overall have been cooperative with the Department. The Tribunal therefore gives this consideration a little weight against cancelling the visa.
Whether there would be consequential cancellations under s.140
The applicant stated at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.
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
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189, however he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The applicant confirmed at hearing that he understood these mandatory legal consequences and he did not have any comments to make in relation to them. The Tribunal gives this only little weight against cancelling the 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
There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa
Any other relevant matters
The Tribunal asked the applicant whether there are any other relevant matters which the Tribunal should take into account. The applicant stated that he had previously been in a bad circle of friends. He stated that he feels as though he has been involved in some sort of game and that it looked like someone had tried to take his application down. He stated that he is not in the same place that he was in before, and that he wants to get back on track and finish his studies. He confirmed that he had provided the Tribunal with all of the relevant documents which he wished the Tribunal to consider.
The Tribunal has considered these comments, but finds that it has already considered these issues in considering the purpose for the applicant’s stay in Australia and the extent of the breach of any visa conditions, and therefore does not need to consider them a second time. The Tribunal finds that there are no other relevant matters which give weight against or in favour of cancelling the visa.
Considering matters as a whole
Considering the above matters as a whole, the Tribunal concludes that the visa should be cancelled. In particular the Tribunal places weight on the circumstances in which the ground for cancellation arose. As noted above, the Tribunal considers there is insufficient evidence that the applicant’s ability to enrol was affected by the demonetisation process, and considers there to be insufficient evidence of extenuating circumstances or circumstances beyond the applicant’s control. The Tribunal has given this consideration no weight against cancelling the visa. Having considered each matter, the Tribunal considers that overall they provide insufficient weight against cancelling the visa.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Frank Russo
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.

[2020] AATA 4209

25 January 2020

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Immigration

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