Burra (Migration)

[2022] AATA 234

Burra (Migration) [2022] AATA 234 (3 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Abhilash Burra

CASE NUMBER:  2009634

DIBP REFERENCE(S):  BCC2018/2434193

MEMBER:David McCulloch

DATE:3 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 03 February 2022 at 10:18am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – Federal Circuit Court remittal – enrolment in a registered course ceased – enrolment cancelled for non-payment of fees – applicant’s medical conditions – family bereavement – bridging visa study restrictions – no evidence of second hospitalisation or subjects passed – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 October 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 Student visa under s 116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a national of India born on 1 June 1992. The visa that has been cancelled was granted on 9 March 2017 for a stay period until 15 March 2019. That visa was subject to condition 8202.

3. On 17 September 2018, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa as he ceased to be enrolled in a registered course since 17 November 2017. The applicant provided a response to the NOICC on 2 October 2018 and 12 October 2018. On 18 October 2018, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

4. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. On 29 October 2019, the Tribunal affirmed the delegate’s decision. On 1 June 2020, the Federal Circuit Court remitted the matter by consent. The Court notes that the Department concedes that the Tribunal decision is affected by jurisdictional error as it failed to consider the applicant’s claims that he had abdominal pain in December 2017 to January 2018 and that he had surgery on his appendix. The matter is now before the Tribunal.

6. The applicant has been holding a Bridging visa E since 4 December 2019 with the following conditions: 8101 (no work), 8207 (no study), 8401 (report as directed), 8506 (notify new address) and 8510 (show valid passport).

7. The applicant appeared before the Tribunal on 18 January 2022 at 9.30am to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The applicant communicated in English. The applicant was represented by his registered migration agent, who did not attend the hearing.

9. 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

10. 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?

11. 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).

12. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.

13. The delegate’s decision record and information on the Department file indicates that he was not enrolled in a registered course of study between 17 November 2017 and 18 October 2018 (the date of the delegate’s decision). It is apparent that the enrolment was cancelled on the basis of non-payment of fees, confirmed by the applicant in the hearing.

14. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

15. In the hearing, the applicant confirmed his non-enrolment in a registered course for the period indicated.

16. 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

17. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

18. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations); provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation; whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

19. The applicant provided the following response to the Department in response to the NOICC (not corrected for spelling or grammar):

    Thank you for your email and granting an extension to respond to immigration. In relation to the gap in my study from 17/11/2017 till the date, I would like to make the following statement.

    After coming to Australia for further education, I could not focus on studies due to the home sleekness and away from family. On the other side, I was informed by my family in end of October 2017 that my father in India was too much seek and ill. He is very close to me. I wanted to go to India but I could not go to India due. After commencing the first semester at Victoria University, NSW Australia, in November 2017, I was suffering from some pain in my abdominal in Dec-Jan 2018. I took some medicines which I brought from India and consulted some doctors too. I received the notice from my University about the cancellation of my COE. So, I was in process of explaining the whole situation to my University and thinking of reinstating the COE from the same University. In early Jun 2018, I had a fracture in my left shoulder with severe pain. This fracture and pain created lot of depression and stress to me. This depression has led me to miss the enrolment date with any other course provider. I decided to change my course provider and move to another course provider but due to fracture I missed the July 2018 intake. I am now fit to study and have inquired with few course providers to get the offer letter and confirmation of enrolment for Master degree in Nov 2018 intake.

    In addition, I would like to tell you that the period from November 2017 to Sep 2018 was one of the most difficult and worse part of my life as I was recovering from the appendix surgery which was done in depression due to new arrival in Australia, father’s illness, fractured shoulder treatment and follow ups, personal health issues with depression all in one particular time frame.

    I am attaching the conversation email with Victoria University, medical reports and bills regarding the injury. Besides I’ve also tried to get from victoria university in march to which I’ve received offer letter as well. Due to financial hardship and the mental illness I was going through then had made this difficult for me. Hence I am willing to continue my masters program from november intake as I’ve missed out july intake due to my shoulder injury.

    Hereby, I request you to kindly consider my above statement in relation to the enrolment record and give me one more chance of become genuine student as these circumstances were beyond my control during this time. I also assure the Department that there will not be any such mistake in future. I will also enrol in the course which is Master level course, attend all the classes and try to pass all the subjects as soon as possible.

    Please let me know if you require any further documents or information regarding the letter.

20. The applicant provided the following additional documents to the Department:

    ·Copy of an email from the applicant dated 16 January 2018 requesting an appointment. The email explains that the applicant’s enrolment has been cancelled due to non-payment of fees. The applicant asked for an opportunity to explain his circumstances in person.

    ·Letter of offer from Victoria University International dated 23 April 2018 for a Master of Business (Enterprise Resource Planning Systems).

    ·Various medical documents and receipts including imaging receipts from June 2018 pertaining to a shoulder injury of the applicant. It appears from the information there was an injury to the applicant’s left shoulder, with an ultrasound having been taken. One of the reports provides conclusions that there is no rotator cuff tear and an indication of other various but mild shoulder conditions.

    ·Email correspondence dated 12 October 2018 to the Department seeking two weeks’ time to organise payment of fees and CoE.

    ·Offer and acceptance letter from Group Colleges Australia dated 12 October 2018 for a Master of Business Administration.

21. The Tribunal notes the following evidence of relevance given by the applicant in the initial Tribunal hearing for the remitted decision that occurred on 29 October 2019. In that hearing the applicant indicates that there was a delay of about two weeks before he commenced classes because of difficulties finding accommodation. The Tribunal notes that the course, a Master of Business (Enterprise Resource Planning Systems) commenced on 27 March 2017. The applicant indicates that he finished the first semester. He commenced the second semester but there was a delay in the necessary transfer for course fees. The applicant went on to complete the second semester and sat his exams. His enrolment was cancelled on 17 November 2017 for non-payment of fees.

22. The applicant indicates that in January 2018 he paid the fees for the second semester of 2017 and was told that his enrolment would be reinstated, but was told to pay the fees for the first semester of 2018. The applicant requested an extension of time but this was refused. The applicant considered going to another university but the course was not available elsewhere.

23. The applicant refers to difficulties because of his father having a cardiac arrest in November 2018. The applicant refers to suffering a shoulder injury in May 2018 as a result of moving house.

24. The applicant provided a submission to the Tribunal dated 9 January 2022. The applicant indicates the cancellation of his visa needs to be considered in the context of the death of the applicant’s uncle, heart issues of his father and an accident causing the applicant a shoulder injury creating depression and anxiety for the applicant.

25. The applicant elaborates that in October 2017 he was informed about the ill-health of and heart issues with his father. The applicant indicates that in January 2018 he started feeling severe abdominal pain. He used to have the pain in India and was taking medicine and continued to take this medicine in Australia. The abdominal pain affected the applicant in continuing with his studies.

26. It is during this time that the applicant received notification of the cancellation of his enrolment. He was in the process of explaining the reasons to the University to reinstate his enrolment due to financial issues and family issues. The applicant then met with an accident and fractured his shoulder. Due to his shoulder injury and pain and stress he could not contact his institution to reinstate his course enrolment and also missed the enrolment date. The applicant could not move due to his shoulder injury. The applicant missed the July 2018 intake due to shoulder pain and depression. After some recovery the applicant was determined to complete his Master’s degree. This intention was shattered when on 18 October 2018 he received notification of the cancellation of his visa. After cancellation the applicant could not study because of restrictions on his bridging visa.

27. The applicant is now enrolled in a Graduate Diploma of Management (Learning). The applicant is asking to be given the opportunity to pursue studies in Australia so he can return home with a qualification.

28. The applicant indicates that the reasons for the cancellation were issues that were not deliberate and beyond his control. It will be detrimental to the applicant if he cannot finish his studies in Australia before returning to his family. The applicant has now recovered from the shoulder injury and wants to concentrate on his studies. This will allow him to secure a good paying job in India on the basis of his Australian qualifications.

29. The applicant indicates that he has been contributing to Australia on the basis of being a fee-paying foreign national. If the applicant has to leave he will face an uncertain future with the taboo that he did not finish his qualification and may not be a successful entrepreneur, living his life with guilt. This will also affect the health of his father. The applicant has already spent funds towards the fee for the course without any tangible certification.

30. The applicant returning to India without a foreign degree would aggravate the stress and anxiety levels of his family which will be passed on to the applicant.

31. The applicant provided to the Tribunal an email dated 15 January 2018 from himself to his education provider indicating that his Confirmation of Enrolment has been cancelled due to non-payment of fees. He requests that his enrolment be reinstated and he will pay fees for the next semester. An additional email was provided from the applicant to his education provider dated 16 January 2018 providing similar information and requesting an appointment to discuss. A response is provided on the same day requesting the applicant attend the institution and ask for the recipient.

32. The applicant together with the submission provided again the medical information as to his shoulder injury in June 2018. Similar documents were provided after the hearing.

33. The applicant also provides a letter of offer dated 7 January 2022 in a Graduate Diploma of Management (Learning) commencing on 14 March 2022 with Astral Skills, Institute of Australia. It requires the payment of $2500 for acceptance.

34. The applicant provides a Discharge Summary for an Anjiah Burra (the applicant’s father) relating to an admission from 30 November 2018 to 10 December 2018 indicating heart issues and heart surgery.

35. In the hearing the applicant confirmed that he in early 2018 paid his education provider for the second semester of 2017. The applicant indicated that when he met the education provider in January 2018 they indicated that he needed to pay upfront the fees for the first semester of 2018.

36. The Tribunal put to the applicant that it did not seem to make sense that the applicant would pay for the second semester of 2017 if he was not going to continue to study in the first semester of 2018. The applicant indicated that he had paid originally about $11,000 for the first semester 2017 and then paid approximately $8800 for the second semester of 2017. The Tribunal noted to the applicant that this did not appear consistent with an October 2021 PRISMS record of the applicant’s enrolment indicating that he had only prepaid tuition fees of $10,400 with the total cost of the course being $41,600.

37. The Tribunal asked the applicant following the hearing to provide evidence of his payment to the education provider for the second semester of 2017 in early 2018. The applicant indicated that he would provide this. The written response indicated that the applicant borrowed the money for the fees from a friend. Provided is a receipt of an amount of $7000 received from an individual to ecollect.com.au dated 19 March 2018. The applicant provides also what he says is a screenshot from the University providing instructions to pay the fee. These documents do not establish that the fee was paid to the University and are inconsistent with October 2021 PRISMS records that do not corroborate this additional $7000 had been paid.

38. In the hearing the applicant confirmed that the reason for his non-enrolment after discussions with his education provider in early 2018 until the visa was cancelled, that is, not taking steps to re-enrol, was a combination of homesickness, of abdominal pain after appendix surgery, the death of his uncle in India, his shoulder injury, and suffering significant depression and anxiety as a result of all of these issues.

39. The Tribunal considered all of these explanations including the applicant’s evidence in the hearing.

40. The Tribunal certainly can accept homesickness of the applicant, being away from his home country and having to adjust to a new environment. Nevertheless, on the applicant’s evidence in the hearing he studied for the whole of 2017, including sitting his exams at the end of the year. In the hearing, the applicant indicated that he passed units during the year. The Tribunal asked the applicant following the hearing to provide his transcript showing units passed. The applicant indicated that he did not have a transcript and there may be difficulties in getting one as he did not pay his fees. The Tribunal indicated to the applicant that given that he has claimed that he paid his fees for the whole of 2017 that he should be able to get a transcript from his education provider in relation to this period. The applicant indicated that he would seek to obtain this information to provide to the Tribunal following the hearing.

1. The written response and documents provided did not contain any information about course progress nor provided transcripts nor detailed any steps that had been taken by the applicant following hearing to seek this information from the education provider.

2. If the applicant had eventually as indicated paid as he claims for the second semester of 2017 that would be one indication of commitment to his study and a discretionary factor in his favour. However, in the absence of the applicant providing as invited in the hearing probative evidence of the payment to the education provider, the Tribunal is not satisfied that the fees for this semester were paid, including considering that it is inconsistent with PRISMS records of the amounts paid.

3. The Tribunal is not inclined to consider homesickness as an overly significant factor to have prevented the applicant from enrolling in a registered course for a period of 11 months from November 2017, given that he had had nine months to adjust to life in Australia.

4. In terms of the abdominal pain, the applicant indicated that he had had appendix surgery in India before his arrival in Australia and was on medication having been obtained in India throughout 2017. The applicant indicated that he stopped taking this medication in early 2018 and that this brought on abdominal pain for a period of about two months before he restarted his medication. The applicant indicated that he did not seek medical attention in Australia for this condition.

5. Given the lack of medical treatment in Australia for abdominal pain together with the fact that the applicant had medication from India to significantly resolve the issue the Tribunal is not satisfied this was an issue of severity significantly contributing to the applicant’s failure to be enrolled.

6. The applicant indicated that his uncle in India died in about May 2018 which caused upset to the applicant as a contributing factor to his lack of enrolment.

7. The applicant confirmed a shoulder injury in June 2018. The applicant indicated that he was hospitalised for approximately four days for this condition. The applicant indicated that medical advice was that he should rest for six months, implying that this was a reason he was unable to facilitate enrolment or study.

8. The Tribunal noted that the medical information that is provided in relation to his shoulder injury does not indicate hospitalisation and suggests that the injury was mild in severity. The Tribunal asked the applicant following the hearing to provide evidence of hospitalisation and a medical opinion that his injury was of a level of severity that he could not function in terms of study for six months. In response, the applicant simply provided medical documents that had previously been provided. The applicant did not provide evidence of hospitalisation for four days or any information to suggest that the injury was of such severity to have prevented functioning including studying for six months. The applicant further to the difficulty of obtaining such evidence in the current environment.

9. In the hearing, the applicant acknowledged that his father’s hospitalisation did not occur until December 2018, long after his enrolment was cancelled. However, the applicant indicated that at the beginning of 2018 he learnt that his father was a diabetic and was not feeling well which was a compounding factor relating to his not ensuring enrolment.

10. The applicant indicated that for all of these various reasons he was suffering significant depression which caused him not to take the steps to enrol. The Tribunal noted to the applicant that he had obtained from his education provider an offer to re-enrol in his Master’s course in April 2018. This was two months before his shoulder injury and eight months prior to his father’s hospitalisation. The applicant maintained his significant depression caused his lack of ability to accept the offer at this time.

11. The Tribunal asked the applicant if he sought medical help for his depression. The applicant indicated that he did not because it was shameful to do so as part of his cultural upbringing. Therefore, no evidence has been provided of the applicant suffering from significant depression such as to cause him not to be able to take the relatively simple administrative steps to enrol.

12. Given the lack of medical attention for claimed severe depression and abdominal issues together with the fact that a number of the other claimed difficulties such as his uncle’s death and his father’s hospitalisation did not occur until many months after his enrolment was cancelled concerns are created for the Tribunal. Cumulatively considered, the Tribunal does not accept that these matters were of a level of severity or temporally relevant to the applicant not being enrolled for the significant period of approximately 11 months. The applicant maintained that the cumulative impact of all of these issues were the extenuating cause of the non-enrolment.

13. Considering all of the evidence, the Tribunal is not satisfied of this. The Tribunal put to the applicant that if he was suffering compassionate or health issues then he should have taken the simple step to secure enrolment and sought a deferral on health or compassionate grounds. The applicant indicated that he did not know of such an option. The Tribunal put to the applicant that he must have had an awareness of his obligation to be enrolled in Australia while on a student visa and reasonably should have taken steps to have maintained his enrolment even if he was suffering from the difficulties indicated. The applicant maintained a lack of awareness.

14. Including the option not exercised by the applicant of enrolling and seeking a deferral on compassionate or health grounds, and the Tribunal’s concerns as to the claimed severity of the various conditions causing non-enrolment, or them being temporal reasons for non-enrolment, cumulatively considered, the Tribunal is not satisfied that there are extenuating circumstances that were beyond the applicant’s control that explain his lack of enrolment in a registered course for the significant period of 11 months. This is significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

15. In terms of the applicant’s study in 2017, the applicant failed as requested to provide evidence corroborating successful study during the bulk of 2017. The absence of this causes the Tribunal to not be satisfied that the applicant made successful progress in his studies during 2017. This is adverse to the applicant in the exercise of the Tribunal’s discretion.

16. The applicant has provided evidence of an enrolment in a Graduate Diploma of Management (Learning) commencing on 14 March 2022. The Tribunal asked the applicant in the hearing why he would not seek to continue his Master of Business. In response, the applicant indicated that it actually would be his preference to continue the Master’s course.

17. The applicant indicated that it would be a significant hardship if he had to return to India without having obtained qualifications in Australia. He left good employment in India and there would be a gap in terms of his career progress. The applicant indicates that he needs the Australian qualification and that he is the only son and could not face his father and family if this was not achieved.

18. The Tribunal does accept not insignificant hardship to the applicant as a result of him not making the progress that he and his family have wished for him in Australia in terms of his studies. However, the Tribunal has reservations as to the degree of the applicant’s own commitment to his studies as a result of no evidence of successful passing of units in 2017 together with his non-enrolment and study during 2018.

19. The Tribunal accepts a hardship to the applicant if the visa remains cancelled in terms of time restrictions in applying for many other categories of visa onshore in Australia.

20. The Tribunal accepts that if the visa remains cancelled the applicant could be an unlawful non-citizen and subject to immigration detention. However, the applicant would be eligible to apply for a bridging visa to make his status lawful.

21. The applicant indicated in the hearing that there is no individual attached to his visa as a dependent who would be affected by the cancellation. The applicant indicated that there are no children in Australia whose interests would be affected by the cancellation.

22. The applicant indicates that he has the intention to return to India and does not claim to fear persecution or significant harm on return to India.

23. The Tribunal weighs discretionary factors. Adverse to the applicant is the fact the Tribunal does not consider that there are extenuating circumstances that were beyond the applicant’s control that explain his failure to be enrolled in a registered course for 11 months. Adverse to the applicant is his demonstrated lack of progress in his study in Australia. While the Tribunal accepts some hardship to the applicant as a result of not being able to remain in Australia, the lack of the applicant’s study progress does not demonstrate to the Tribunal that the applicant has a serious desire to undertake ongoing study in Australia. Balancing factors, the Tribunal is firmly of the view that matters adverse to the applicant outweigh matters in his favour including some hardship that he will face if the visa remains cancelled.

24. The Tribunal determines to exercise its discretion to cancel the visa.

    DECISION

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

    David McCulloch
    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.