BURRA (Migration)

[2019] AATA 5725

BURRA (Migration) [2019] AATA 5725 (29 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhilash Burra

CASE NUMBER:  1831523

DIBP REFERENCE(S):  BCC2018/2434193

MEMBER:Elizabeth Tueno

DATE AND TIME OF

ORAL DECISION AND REASONS:         29 October 2019 at 11:02 am (VIC time)

DATE OF WRITTEN RECORD:                17 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 December 2019 at 10:39am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – non-payment of fees – shoulder injury – father’s health – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 October 2018 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 29 October 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. 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 (Temporary) (Class TU) visa under section 116(1)(b) of the Migration Act 1958.

4. The delegate cancelled the visa on the basis that the applicant has not complied with condition 8202(2)(a) in that he was not enrolled in a registered course of study.  The delegate was not satisfied that the ground for cancelling the visa were outweighed by the grounds for not cancelling it.

5. The issue in the present case is whether that ground for cancellation was made out and, if so, whether the visa should be cancelled. The applicant appeared before the tribunal today to give evidence and present arguments. 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. If the applicant has breached that condition under section 116(1) of the Act the visa may be cancelled.

6. Condition 8202 as it applies in this case requires that the applicant be enrolled in a registered course or in limited cases a fulltime course of study or training.  In the present case the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.

7. The applicant accepted that he had breached condition 8202 as he is not currently enrolled in a course.  In evidence before the tribunal the applicant accepted that he has not been enrolled in a registered fulltime course since 17 November 2017 when his enrolment in a Master of Enterprise Resources Planning at Victoria University in Sydney was cancelled for non-payment of tuition fees.  He confirmed that he has not enrolled in a course since that date.  Accordingly, the applicant has not complied with condition 8202(2).

8. Having found that the applicant has not complied with the conditions 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 known as PAM3 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.

9. The applicant is a 28 year-old Indian national.  The applicant’s evidence was that he came to Australia to study the Master of Enterprise Resources Planning at Victoria University in Sydney.  There was no evidence presented at the hearing or in the Department’s file that the applicant came to Australia for any purpose other than to study.  Accordingly, the tribunal gives this some weight against cancelling the visa, the circumstances of which the ground for cancellation arose.

10. The applicant gave evidence that he arrived in March 2017 to study at Victoria University in Sydney.  He found it difficult initially to find accommodation but eventually started attending classes two weeks later after the course had started and finished the first semester of the Master of Enterprise Resources Planning course.

11. He commenced the second semester but there was a delay in his bank to transfer the funds for the tuition fees but he did go on to complete the second semester and sat his exams.  His enrolment was cancelled on 17 November 2017 for non-payment of tuition fees.

12. In January 2018 he paid for the second semester of 2017 tuition fees and was told his confirmation of enrolment would be reinstated but they then asked for him to pay the first semester of 2018 tuition fees.  He then asked for an extension of time to pay these fees but his request was refused.  The university did not reinstate his enrolment because he did not pay the first semester of 2018 tuition fees.

13. He said in evidence that he considered applying to another university to start enrolment in a course in July 2018.  He said he thought about enrolling at Federation University but the course he was studying was not available there.  He said that his father was paying his tuition fees.  He said in November 2018 his father suffered a cardiac arrest.  He also said that he suffered an injury to his left shoulder in May 2018.  There was medical documentation provided to the Department showing that the applicant had indeed injured his left shoulder and that the injury was a broken left shoulder bone.

14. When asked by the tribunal why he did not pay the tuition fees between January and May 2018 when he entered into the second semester of 2018 in July the applicant did not provide the tribunal with a comprehendible answer and did not properly explain this.  His explanation was that he said that he needed time to come up with funds.

15. He said that he fractured his shoulder when moving his house and he fell down the stairs.  As noted, this was around May 2018 and he said he was about of action for more than three months.  He said this led him to start to feel stressed and upset.  He said he could not go home until he had a valid visa.  He did not see a doctor about feeling stressed and upset because he did not think about it.  He said his daily activities were affected because of the shoulder injury and he could not study.

16. He said he does not want to stay here or work here, he just wants to return home after completing his studies.  He said he does not want to disappoint his father.  He does not have any medical documents about his father’s condition as he did not want his father to know about his situation in Australia regarding his visa situation.

17. When asked about whether his father thinks it odd that he has not been required to pay the tuition fees since November 2017 he said that he has told his father that he was not studying because of his fractured arm.

18. He said he came to Australia to complete a degree and wants the opportunity to complete his studies.  He found it difficult because of his stress to concentrate on his studies.  The applicant seeks to rely on his financial difficulties in late 2017, his shoulder injury in May 2018, and his father’s heart attack in November 2018 and a subsequent attack in February 2019 as the reasons why his visa should not be cancelled.  The tribunal has taken these matters into account.

19. By the time the applicant injured his left shoulder some six months had already passed since his enrolment was cancelled in November 2017.  It was a further seven months before his father’s first heart attack.  The fundamental reason for the applicant’s enrolment being cancelled was because of his non‑payment of his tuition fees.  In January 2018 having just paid the amount owed in the year for the second semester in 2017 that he had just completed, he was quite reasonably requested by the university to pay the tuition fees for the first semester of 2018 that was about commence.  He was unable to do so and therefore his enrolment was not reinstated.

20. The applicant had from at least January to May 2018 before his shoulder injury to pay the tuition fees for the semester that would have commenced in July 2018 but failed to do so.  The tribunal does not accept the explanation provided by the applicant as it was lacking in cogency.  The tribunal considers that it was a fundamental part of studying in Australia at a known expense that the tuition fees would need to be paid in order to continue studying.  It was the applicant’s responsibility to ensure this was done.  It was not done.

21. The tribunal accepts that the applicant injured his left shoulder and that his father suffered two heart attacks; however the tribunal does not accept that these matters would have prevented the applicant from going on with his studies and enrolling in the second semester in July of 2018.  This is particularly so because his father had not even suffered his heart attack at that stage.

22. While there was medical evidence provided to the Department about his shoulder injury there is no medical evidence that the left shoulder injury would have prevented him from studying.  The applicant stated in his evidence that he is right handed and he had injured his left shoulder.  At this point he could have returned home to recuperate in India before applying to study again in Australia.  He chose not to do so.  In light of the above circumstances the tribunal gives this substantial weight in favour of cancelling the visa.

23. Aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of his visa.  Accordingly, some weight is given in favour of not cancelling the visa due to his general compliance with the conditions of his visa.

24. However, the applicant complied with the conditions of his visa for only five months before his enrolment was cancelled on 17 November 2017.  Accordingly, the tribunal gives this more weight in favour of cancelling the visa due to the significant period of time that has subsequently lapsed since then.

25. When asked what hardship might be caused if his visa were to be cancelled the applicant said he does not want to stay here or work here, he just wants to return home.  He does not want to disappoint his father.  It would be good for his health if he completed his studies here meaning his father’s health.  He said financially his father can support him.  He does not believe it would be financially difficult; it is more about the disappointment.  He said he will miss out on promotions at work if he does not complete the Masters course.  He used to think he was not an emotional person but since his father’s heart attack he really wants to make his father happy, return home, and look after his father.  The applicant said he has spent a lot of time and money in Australia and does not want this to go to waste.

26. The tribunal accepts that the applicant will suffer some financial and emotional hardship if he has to return to his home country without completing his course of study he intended on completing and accordingly gives this some weight against cancelling the visa.

27. As noted earlier, aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of his visa.  There is nowhere in the evidence to suggest that the applicant has not engaged appropriately with the Department.  Accordingly, the tribunal gives this some weight against cancelling the visa.

28. The issue of whether there are consequential cancellation under section 140 is not applicable in this case.

29. As to any mandatory legal consequences the applicant gave no evidence about any legal consequences for him nor did he make any submissions about this.

30. There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa.  If the visa is cancelled a legal consequence of the visa the applicant would not be able to apply for another student visa subsequently the appeal rights can be exercised.  If the applicant chooses to remain in Australia unlawfully he could be liable for removal and detention.  The applicant could also be prejudiced from making any further visa applications for a period of three years as a result of Public Interest Criterion 4013.

31. The tribunal is satisfied that those consequences are intended lawful consequences of the legislation and in the applicant’s case do not mean that the visa should not be cancelled.  The tribunal gives no weight to cancelling the visa under this consideration.

32. There is nothing before the tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations.  The applicant’s evidence is that he is not married and has no children.  Accordingly, the tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa.

33. The applicant did not give evidence about any other matter that would be relevant to the review of the cancellation of his student visa.

34. Considering the circumstances as a whole the tribunal finds that the factors that weigh in favour of cancelling the visa outweigh the factors against cancelling the visa.  Accordingly, the tribunal finds that the visa should be cancelled.

    DECISION

35. The tribunal affirms the decision to cancel the applicant’s visa.

    Elizabeth Tueno
    Member