BODAPATI (Migration)

[2021] AATA 2647

BODAPATI (Migration) [2021] AATA 2647 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aditya Vardhan Bodapati

CASE NUMBER:  1928314

HOME AFFAIRS REFERENCE(S):          BCC2017/2714732

MEMBER:Joseph Lindsay

DATE:1 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 1 June 2021 at 12:35pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant did not maintain enrolment in a registered course – breached condition 8202 –  failure to approach the Department about his issues during the time he was not enrolled – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 September 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The applicant attended a hearing by audio with the Tribunal on 26 May 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

3. 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

4. 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 (Cth) (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?

5. 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 full-time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

6. The Tribunal then put to the applicant that he had provided the delegate’s decision dated 29 September 2017 to the Tribunal. In respect to the delegate’s decision, the applicant made admissions that the information in the decision record was correct.

7. The applicant agreed that he had not been enrolled in a registered course of study since 8 June 2018 and that there were grounds for cancellation of his student visa.

8. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 20 January 2017. Accordingly, the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s 116(1)(b) of the Act.

   Consideration of the discretion to cancel the visa

9. 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 circumstances in which the ground for cancellation arose

10. The Tribunal considered the applicant’s written submissions received by the Tribunal on 20 May 2021 that stated in part:

    The Applicant came to Australia on 9 June 2014 to study Master of Information Technology at James Cook University (JCU), Brisbane (21 July 2014 - 14 July 2016). The applicant could not finish this course because he failed in a few units, so he changed his course and enrolled for Diploma of Business Management at Australian Institute of Technology and Management (AITM) (11 May 2015 - 20 November 2015). The applicant enrolled for another course after finishing the previous one.

    He enrolled for Advanced Diploma of Leadership and Management at Australian Institute of Technology and Management (AITM) (14 December 2015 – 9 December 2016). He did not finish this course because he felt it was tough for him, so he changed his course to Certificate IV in Commercial Cookery at the same education provider (8 August 2016 – 2 February 2018). He liked the course, and he was keen to learn and finish it but before he could actually finish it, the institute was shut down.

    Applicant’s Circumstances

    The applicant initially travelled to Australia to study Master of Information Technology at James Cook University, but he was unable to finish his degree because he met with an accident. He was involved in a scooter accident and he got injured. After a week of his scooter accident, he started seeing rashes all over his body, he rushed to the emergency department of a hospital and the doctors diagnosed that he had a viral infection. It took 2-3 weeks for him to get better and start studying but he was already 8 weeks behind his course. He submitted several documents including medical certificate, reports, receipts or invoices and prescriptions but the university staff refused to give him one more chance.

    He failed a few units and changed his course to Diploma of Business Management which was completed on 20 November 2015. After finishing this course, the applicant could not finish Advanced Diploma of Leadership and Management because he felt it was tough for him, but he tried to attempt and give his best. He was barely able to pass the units, so he changed his course to Certificate IV in Commercial Cookery at the same education provider (8 August 2016 – 2 February 2018).

    The applicant was studying Certificate IV in Commercial Cookery at Australian Institute of Technology and Management (AITM) when suddenly the institute was shut down. It was extremely difficult for him to accept the fact that he was unaware of the reasons for the closure of the institute. He was confused and in dilemma because he did not have any other option of getting enrolled in another course in the middle of the year. He was in stress, causing him to experience panic attacks as he was worried about the occurrence of the extremely uneventful situation which eventually happened, cancellation of student (subclass 500) visa.

    He had one option of waiting to get enrolled in next semester, which was in January 2017, but he could not get enrolled in any of the courses. He put countless efforts in applying for different courses at numerous education providers. Unfortunately, he was not able to get his hands on the most awaited document, the certificate of enrolment (COE). He was disappointed and shattered because he could not get enrolled in any course.

    Subsequently, on 20 January 2017, the applicant’s grandmother passed away. He was already shattered and disappointed with the occurrence of the unusual events and simultaneously, he had to hear one more devastating news. He was close to his grandmother and he could not handle the pain and sorrow. He was in depression because nothing was happening in his favor.

    The applicant was putting a lot of efforts to control himself and handle the pain, but it was a difficult task for him. He was seeing a psychologist while he was going through numerous unfavorable situations and a tough time. He was trying to cope up but suddenly he received an email stating that his visa was cancelled due to not having an active certificate of enrolment (COE). In the end, the applicant believed that he lost everything, and nothing was in his control or favor, but he still did not give up which led him to appeal to the Tribunal.

    Claims and Evidence

    The applicant claims that he enrolled for four courses but only 1 course was completed by him. He could not complete the remaining courses because of the exceptional circumstances explained above.

    The applicant is willing to submit the following documents as evidence

    • The certificates of enrolment and cancelled certificates of enrolment of all the universities where he has studied previously.

    • Transcripts of all the courses he was enrolled in.

    • Certificates of Completion of all the courses he has studied previously.

    • Medical reports and medical certificate from the general practitioner (Scooter Accident).

    • Grandmother’s Death Certificate.

    • Medical Certificate from a Psychologist

    • Medical report and the result of diagnosis from a psychologist

    The applicant claims that he has been facing several problems simultaneously, but he still wants to study further. He claims that if he gets his study rights and student (subclass 500) visa then he would like to study further and get enrolled in Master of Business Administration. Previously, he has completed Diploma of Business Management, so he wants to study further and get enrolled in Master of Business Administration as these courses are closely related and would be beneficial for him to get employed in future.

11. In response to questioning from the Tribunal as to why the applicant ceased to be enrolled in early 2017, the applicant indicated that his course provider was shut down. He indicated that he made multiple applications to other course providers, but he was not successful in obtaining another enrolment. The applicant also explained that a reason why he remained unenrolled from early 2017 to the time he got the Notice of Intention to Consider Cancellation (NOICC) on 11 September 2017 was due to the adverse effect that his grandmother’s death had on him.

12. The Tribunal asked the applicant if he had approached the Department about his problems, and in response he indicated that he did not approach the Department about his problems. The Tribunal asked the applicant if he believed that it was his responsibility as the visa holder to abide by the conditions of his visa and keep the Department informed of his circumstances. In response the applicant indicated that he agreed that it was his responsibility as the visa holder to abide by the conditions of his visa and keep the Department informed of his circumstances.

13. The Tribunal has carefully considered the applicant’s circumstances and makes the following findings.

14. The Tribunal accepts that the applicant experienced difficulties with his master’s course. The Tribunal accepts that he had a scooter accident and had experienced medical issues in his time in Australia. The Tribunal accepts that the applicant could not finish the Advanced Diploma of Leadership and Management because he felt it was tough for him. The Tribunal accepts that the applicant’s course provider was shut down in early 2017 and at around the same time his grandmother passed away. The Tribunal accepts that the applicant experienced difficulties as a result of these situations and accessed mental health support services.

15. However, the Tribunal places heavier weight against the applicant in respect to his failure to approach the Department about his issues during the time he was not enrolled. As he admitted to the Tribunal, the visa holder’s responsibility is to abide by the conditions of his visa. The applicant’s personal circumstances are regretful. Nevertheless, as the holder of a student visa, the applicant is required to maintain compliance with his visa conditions, and the Tribunal places high weight on this matter against the applicant.

16. In consideration of the above circumstances, the Tribunal finds that these circumstances are not exceptional circumstances. Accordingly, the Tribunal places high weight on this information against the applicant.

    The purpose of the visa holder’s travel and stay in Australia

17. The applicant said that his purpose in coming to Australia was to study. The Tribunal accepts that the applicant’s purpose in coming to Australia was to study and gives this consideration some weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

18. The applicant appears to have abided by his other visa conditions. Accordingly, the Tribunal gives some weight in the applicant’s favour in regard to this factor.

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

19. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled. In response, the applicant indicated that he would be very stressed. He said from his cultural background, it would not look good and he would not be able to face anyone about it. He said he feels mentally drained and just wants to do his master’s course in Australia. He said that he is looking for a chance to prove to his parents and friends he can study.

20. The Tribunal accepts that the applicant would be very emotionally disappointed and stressed if his visa was cancelled. The Tribunal has sympathy for the hardship that may be caused to the applicant if his visa was cancelled and gives this matter some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

21. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s 140 of the Act

22. The applicant does not have any dependants on his student visa who would be affected if his student visa was cancelled. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

23. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

24. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to India.

25. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

26. The Tribunal places some weight on this information in the applicant’s favour.

    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

27. The Tribunal asked the applicant if he feared anything in returning to India. In response he indicated that he was only fearful for his career, but that he had no other fears if he went back to India. Accordingly, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

28. In respect to whether there were any other relevant matters he wished to discuss, the applicant indicated that there were other matters he wished to discuss.

29. The applicant said that he felt he had spent money in Australia, and that his family supported him. He indicated that if he did not do his master’s, he would not have anything to show for the time and money that has been spent. He said he felt stressed about the situation. The applicant’s representative in his oral submissions re-affirmed the applicant’s concerns that he wanted to complete the master’s course.

30. The Tribunal has some sympathy for the applicant’s circumstances and give these circumstances some weight in his favour.

    Conclusion

31. In balancing the overall circumstances above, the Tribunal concludes that the visa should be cancelled.

    DECISION

32. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Joseph Lindsay
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.