BOLLAM (Migration) - [2019] AATA 466

BOLLAM (Migration) [2019] AATA 466 (11 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Bharadwaja Srikanth BOLLAM
CASE NUMBER:  1709998
HOME AFFAIRS REFERENCE(S):           BCC2017/891384
MEMBER:Helen Kroger
DATE:11 February 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 11 February 2019 at 3:21pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant ceased studying – applicant’s family’s temporary financial hardship – medical condition affecting ability to communicate – applicant sought course deferment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 189
Migration Regulations 1994, Schedule 8 Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 1 May 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 applicant, Mr Bollam, is an Indian national, granted a visa on 6 May 2016 to study in Australia. He was granted a visa before this in February 2014 to commence his study at the University of Southern Queensland.
On the 11 April 2017, Mr Bollam was sent a Notice of Intention to Consider Cancellation of his student visa inviting him to comment on a potential breach of 8202 which was imposed on his visa. The applicant did not provide a response to the delegate.
The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed the grounds for not cancelling the visa. 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 seeks review of the delegate’s decision and for that purpose provided a copy of the primary decision to it.
The applicant appeared before the Tribunal on 11 February 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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.
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. The applicant was invited by the delegate to respond to the NOICC on the 11 April 2017 and did not respond to this invitation. The applicant initially engaged a migration agent to assist him in this regard and explained to the Tribunal that due to his financial circumstances that caused him to cease his enrolment, he was unable to afford the agent, became agitated and stressed, not responding to the NOICC. At the hearing, the alleged breach (as discussed by the delegate in his/her decision), was put to the applicant and reference was made to the delegate’s decision record that indicates that he has not been in a registered course since 30 May 2016, a period of 13 months before the NOICC was issued. The applicant confirmed during the hearing that this was correct and that he had not been enrolled in a registered course of study since that time.
On the evidence before the Tribunal, namely the applicant’s admission during the hearing along with the written submission by the applicant in response to the NOICC, the Tribunal finds that 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
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’.
The Tribunal has considered the applicant’s submission he provided to the delegate and the evidence submitted during the hearing to support his claims.
The information provided to the Tribunal at the hearing has been considered by the tribunal in its exercise of discretion as outlined below.
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, Mr Bollam, is an Indian national who is 28 years of age. He first travelled to Australia in February 2014 for the purpose of studying a Masters of Information Systems Extended at the University of Southern Queensland. He completed 2 semesters, over a period of around 9 months. He had previously graduated in a Bachelor of Computer Science in India in 2012 and had worked in the family business for two years before coming to Australia. He transferred to Charles Sturt University in Melbourne in 2015, receiving credit for some of his modules.
The family business was a training college and hostel for around 150 students that was subsidised by the Government. Following a change of Government and a different policy approach, the Government no longer provided support and the business has since closed, after the applicant arrived in Australia. It was the closure of the business that created financial problems for his parents who were paying for his school fees. The Indian Court judgement and finding regarding the recovery of money from the applicant’s father in favour of the property owner/lessor of the training college and hostel indicates a finding against the applicant’s father that was directly debited from his father’s salary(folio 48-50) and pay slips for his father, with the direct debit details for these payments, were also submitted(folio 52-59).
The applicant has indicated that recovery and restitution of the full amount has been paid, and that his father is now able to resume payment for the uncompleted modules.
The applicant indicated to the hearing that he has successfully completed close to 75 percent of his modules and that he needs to complete a further 5 modules to successfully complete his Master’s degree. The applicant explained that he wishes to complete his Master’s degree as it provides him with greater knowledge that will give him better and improved employment prospects on his return to India.
The applicant explained at hearing that he approached the College regarding possible options and/or deferment when the family’s financial circumstances changed, but that it was too late to defer as the academic year had commenced. The applicant was also working part time at a food court, employment that ceased after the stress of the circumstances exacerbated a pre-existing medical condition.
The Tribunal has given careful consideration to the evidence before it and given particular regard to the applicant’s testimony at hearing and finds it particularly persuasive. The Tribunal has considered the study record of the applicant and the number of modules he has completed and the five modules he is yet to successfully complete, in order to finish his Master’s degree successfully. The applicant was not enrolled in a registered course of study since 30 May 2016 and the Tribunal has considered the length of time he has studied, the number of modules successfully completed in terms of the overall course, and the mitigating circumstances that impacted upon the applicant’s intent to study. Accordingly, the Tribunal gives significant weight to these considerations and little weight to factors in favour of cancelling the applicant’s visa.
The extent of compliance with visa conditions
There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal is mindful of the significance of the breach. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant consistently submitted at hearing that he travelled to Australia with the intent to study a Master’s degree in Information Technology to improve his qualification to enable him to improve his employment prospects in India. In his written submission to the Tribunal, through his migration agent he makes the following claim:
Bharadwaja Srikanth Bollam is a genuine student who faced some unforeseen circumstances during his study and stay in Australia and was not able to complete his study in Australia. Srikanth Bollam and his family were going through a financial hardship in India {Court Document attached) due to which Srikanth Bollam's family was not able to pay for his tuition fee and Srikham Bollam was not able to enrol into the last semester of his study.
Srikanth Bollam has successfully completed almost 75 percent (7 Modules) of his course and is left with 25 percent (5 Modules) of his course Master of Information technology. Srikanth Bollam has 5 modules to clear and attain the Master degree he came to Australia for. Srikanth Boilam's only aim was to get the Master of Information technology degree and return back to start a career as an IT professional.
Srikanth Bollam tried his level best to get help and guidance from his migration agent but was not in a position to pay the financial costs involved in the process due to which he was not able to present his case. His lack of migration law knowledge and by not been guided in the right direction lead to his visa being cancelled.
Srikanth Bollam's future and his entire career depends upon him finishing his Master degree and return back to his home country to be a successful IT professional.
Bharadwaja Srikanth Bonam was not only going through a hard time to get the funds together for his study but was also going through a very hard time with his medical condition of speech stutter which became worst due to the stress and nxiety caused by the situation he was in (Doctor’s report attached). This would be a tragic end to his IT career and his confidence if he does not get a chance to complete his study and return to India.
Srikanth Bollam has a condition of Speech Stuttering and he has experienced it to get worst since he has been through this hard time and under stress. Returning back to his home country without completing his degree can have serious consequences for him regarding his health.
The Tribunal has considered a medical certificate from the Maidstone Family Clinic that references his history of a speech stutter that affects his ability to communicate, a condition that was evident during the hearing, and the way in which he was afflicted by it, when questioned. The Tribunal has considered the evidence submitted regarding potentially improved employment opportunities in India, should he attain a Master’s degree in Information technology in addition to the potential psychological and emotional hardship that the applicant could face with a visa cancellation. The Tribunal has considered the manner in which the applicant presented evidence at the hearing and the direct effect on the applicant in dealing with questions throughout the hearing.
The Tribunal finds that a visa cancellation would cause significant hardship to the applicant with regard to his psychological and emotional well-being, whilst he would be potentially subject to hardship if he did not have the opportunity to complete the final modules in his course of study. Accordingly the Tribunal gives significant weight in favour of the applicant in regard to the psychological, emotional and financial hardships faced and little weight to the length of the breach of the visa conditions.
Circumstances in which ground of cancellation arose
As explained above, the applicant commenced his Master’s in Information Technology at the University of Southern Queensland and transferred to Charles Sturt University in 2015, so that he could be near friends in Melbourne. He indicated that he didn’t know anyone from India in Queensland and that he knew a number of people in Melbourne. He was creditied for the modules he had completed at the University of Queensland. In his first year he completed 4 out of 7 modules successfully, and was required to repeat the equivalent modules at Charles Sturt.
His parents were funding the course, and were in financial difficulty in 2016, when the landlord of a property they had been leasing, took action against them after the closure f the business. The details of this are outlined in folio 63 and an affidavit sworn and signed by his father (folio 51) support this claim. At this time, the applicant continued to be in communication with his parents about the situation and claims to have approached the University to seek deferment, although no documentation has been submitted to support this claim. The applicant claims that the time frame for a possible deferment had concluded.
The applicant who suffers from a history of stuttering, indicated that he found the circumstances particularly distressing and stressful, which exacerbated a pre-existing condition, causing further difficulties for him. He was working part time in a food court and explained at hearing that he lost this job due to his condition.
The applicant’s father has since been engaged in Court proceedings with an order for the recovery of money made against him. Documentation outlined above, indicates that this money has now been paid and that he has now able to pay for any outstanding course fees.
The Tribunal has considered the documentation presented at hearing, along with the applicant’s oral submission (the evidentiary basis for this being the audio file). Given the circumstances as outlined above, the Tribunal gives significant weight to the reasons why the applicant was not enrolled in a registered course of study and finds that these reasons outweigh any weight given to the period of time of the breach.
Past and present behaviour of the visa holder towards the department
There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings.
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
It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision.
Whether any international obligations would be reached as a result of a cancellation
There is nothing before the Tribunal to indicate there are international obligations to consider.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Helen Kroger
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.