Charakanam (Migration)

[2018] AATA 5205

Charakanam (Migration) [2018] AATA 5205 (18 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dinesh Appala Raju Charakanam

CASE NUMBER:  1700843

HOME AFFAIRS REFERENCE(S):           BCC2016/3366750

MEMBER:Sean Baker

DATE OF ORAL DECISION:  18 October 2018

DATE OF WRITTEN STATEMENT:         29 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 29 October 2018 at 11:48am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 573 Higher Education Sector visa  –not enrolled in a registered course of study – breach of condition 8202– letter of offer for courses below his educational level – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 December 2016 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).

2. The delegate cancelled the visa on the basis that the applicant had not maintained enrolment in a registered course, enlivening the cancellation power under s.116(1), and that the factors against cancellation did not outweigh those in favour. 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 provided a copy of the delegate’s decision to the Tribunal.

3. The applicant appeared before the Tribunal on 18 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages. The applicant was represented in relation to the review by his registered migration agent.

4. 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

5. 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?

6. 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)

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. Prior to the cancellation he was sent a Notice of Intention to Consider Cancellation (NOICC), to which he responded.

8. The applicant said he had come to Australia around 12 or 13 March 2015. He had studied a Bachelor of IT in India and had then worked for several years as a software engineer. He started his course of Masters of Information Technology at Charles Sturt University by coursework on 14 March 2015 he said. He explained he had got his visa late so he came here very soon after getting his visa. He said he tried to study his Masters but was unable to do so. He said it was very new for him and he could not understand, and his sister had problems and he could not concentrate.

9. He elaborated that people were new, everything was new – he had always been very close with is family , he used to stay inside the house and not go out. He said it was not that easy to live here where everything was different – he could not cope with it. he said also his sister was really unwell and he could not stop thinking about that.

10. I asked if he had completed the first semester of his course. He said he had not, he said the first semester finished four to five months after the course started. I asked if he had attended classes for this semester and he said he had, for a little bit, about 2 – 3 ½ months and then he stopped attending. I asked if he had attended second semester and he said he had not, he stopped attending in first semester. I asked what he had done instead and he said he had not done anything.  He said he had thought he would come here and study but it was not that easy here to study.

11. I noted he said he had stopped attending in first semester. I asked if he had contacted or spoken to anyone at Charles Sturt about this and he said he had not. I asked if he had gone to a Doctor or health professional at that time and he asked why should he go to a Doctor. I explained that what I was asking was whether he had seen anyone about the fact that he was not studying, the reason he had come to Australia. He said no, he didn’t tell anyone.

12. I asked if his enrolment had ceased on 26 November 2015 and he said that was correct. I asked why Charles Sturt had ceased his enrolment and he said he did not know. I asked if they had sent him any letters or notices about ceasing his enrolment and he said no, they had not sent anything to his house. I asked if they had by email and he said he did not remember clearly. I asked if they had sent anything to his University email address and he said he did not remember when he had seen that or not but maybe they had sent. I noted that I was trying to understand why his enrolment had ceased on 26 November. He said maybe they did it because he did not enrol in the next semester, and he clarified he meant semester two. I asked if he had enrolled in any other course before or after this date and he said he had not.

13. I noted that he had provided a letter of offer for lower level courses dated 22 September 2015 for a Certificate IV, Diploma and Advanced Diploma – I noted that these were lower level study than his previous study in India and asked why he had got these. The applicant said that that was only an offer letter and they had mentioned that he would be breaching a condition of the visa as he had come here to study Masters and he should not go for other courses, so that was why he thought it was not correct and then stopped. I explained that I was interested in why he had got that letter of offer rather than what others might have said or thought about the offer letter. He said that his friend has studied in that same college and his friends said you can do this and study like this and like that. I noted that this didn’t really answer why he had chosen to do these courses. He said he didn’t have any information about foreign countries and whether you can do like this or like that. Then other people said he should not do this and that was why he did not go to that course.

14. The applicant agreed that from 26 November 2015 until his student visa was cancelled on 29 December 2016 he had not been enrolled in a registered course. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for this period. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

15. 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’

16. I have carefully considered the response the applicant made to the NOICC, the response to the Tribunal letter of 23 January 2018, and the applicant’s evidence at the hearing.

17. In his response to the Department the applicant emphasised the illness and death of his sister as well as his difficulties in adjusting to life in Australia.

18. The letter to the Tribunal of 6 February 2018 explains that the applicant did not breach visa conditions intentionally and had compelling reasons for doing so. He was always a career orientated student. It states that the applicant was told of his sister’s poor health every day, which became a source of stress and anxiety and he was unable to concentrate on his studies. He wished to return but his parents insisted and he remained. He developed aversion to social groups and university environment and tasks. He would cry for hours. He was also concerned about the education loan his parents had to pay off. He started to struggle between college and work. He was passive and is an introvert. It is claimed he started his study again in November 2015. His sister was admitted to hospital in January 2016. He rushed home in February but his sister died on 8 February 2016. He returned to Australia but stopped going to college again. He now wishes to study again. Affirming the visa would negatively impact his parent’s financial condition, would force him to leave Australia and be a waste of his parent’s money and his time. he wishes to study and will abide by all conditions. He will begin his study for Bachelor of Information System and return to his home country.

    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

19. The applicant said that his purpose was to study his Masters in Australia. He said his sister’s situation was not good and if he had stayed in India he would be thinking about it but he thought if he came here then he could complete his Masters. I noted he had applied for lower level study in September 2015, below the educational level he had obtained in India. He said again that he had not been aware if you could do this or not. He applied for these courses on his friend’s advice.

20. Having carefully considered the applicant’s responses and the information before me, whilst I have some concerns that the applicant gained a letter of offer for courses below his educational level, I am willing to accept that his intention in coming to Australia was to study and give this some weight in his favour.

    the extent of compliance with visa conditions

21. I explained to that applicant that I did need to consider the period he had not been enrolled in a registered course, and that I might consider this period to have been significant – over a year. The applicant responded that he is Indian and did not know about the visa and all the circumstances. I noted that complying with conditions is the responsibility of the visa holder. He agreed but said he did not know.

22. I asked if he had worked in Australia and he said he had for some days, he said he had worked for maybe five months. He said he started working around 2-3 months after he got here, as a console operator at a field station in Essendon. He said he had worked about 18-19 hours a week and said it was a condition of his visa that he only work 20 hours a week, which he had complied with. He said he was aware of that condition.

23. There is no information before me in relation to the visa conditions discussed. I am willing to accept his claim that he did not breach the work limitation. However, having carefully considered the information before me, I consider that the breach of condition 8202(2) here is significant, having been for a long period, and, for the reasons below, I do not wholly accept the explanations he has given. I therefore give the lengthy breach of condition 8202 some weight towards the visa being cancelled.

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

24. At hearing the applicant said there may not be financial hardship if the visa remained cancelled. He said he had been here for so long and without study it will be difficult in his family and for his career. The submissions above indicate that there would be some financial hardship to the applicant’s family.

25. I accept that there would be some financial hardship to the applicant and his family if the visa remained cancelled, and I accept that there may be some difficulties for the applicant with his family and his career. However, I do not accept, on what he has said and the information before me, that such hardship is significant and I give this only little weight towards the visa not being cancelled.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

26. The circumstances were discussed throughout the hearing. I have taken into account the evidence given by the applicant at the hearing, the submission of his representative, and the information provided to the Department and Tribunal. I have had regard to the death certificate of his sister.

27. At hearing the applicant said that he had had trouble getting used to it here and many people in his cohort had gained their education and were working in good positions here.

28. I asked about the claim that he had suffered depression and anxiety since his sister passed away. The applicant responded that any person would be depressed if their sister passed away. He had only one sister, and his mum and dad also lost siblings, and they were not close to his extended family. He said that his sister had been diagnosed with a brain tumour in the end, she became really weak and used to eat all the food but did not gain weight. When she got a fever she would become really weak and she was dependent on saline and a lot of medication. They used to give her injections and the applicant said he was buying those medicines.

29. I asked if he had seen a medical professional about his claimed depression and anxiety at any stage and he said he had, in India after the death of his sister he saw a doctor once. I asked if he had seen a doctor in Australia and he said he had not. He said he had not because he didn’t like to share about himself and he would not go out here but in India he went because his parents took him. I asked what the Doctor had said to him and the applicant said the Doctor had told him his mental health was not good and he should go out of the country and study, whatever had happened has happened and we cannot do much about it. I asked if the Doctor had diagnosed any treatment and he said no treatment, he told the applicant to meditate. He said he did not have any record of having visited the Doctor in India. I noted that it was difficult to take this into account if I did not have any record of his visit.

30. I noted to the applicant that his sister had passed away some time after his enrolment had been cancelled by his provider on 26 November 2015, and I was not sure how much weight I could give to his sister passing away in February 2016 to explain his actions prior to that. he clarified that his enrolment was cancelled before his sister died and I explained the enrolment by his provider had been cancelled. He said he had not gone to college and that was why his enrolment had been cancelled and he had already mentioned the reasons he did not go. I explained to him that from what he had told me I might only be able to place limited weight on his sister’s illness and passing away in explaining the cancellation of his enrolment and his stopping attending classes prior to this. He reiterated that even before this she was ill, even from the beginning she was ill, she had been ill before he came. I noted that if she had been ill when he had come here then I was not sure her illness fully explained why he had stopped going to class and stopped being enrolled. I noted he had said he did not inform or contact Charles Sturt . He said that people have their own priorities. He said that he also did not understand people in Australia, and when he stayed inside he felt better.

31. I noted he had said he had stopped attending class in around May or June 2015, and asked whether he had returned to India at this time. He said he had not, he did not even want to go in February but his parents had said he would not see her again.

32. I have carefully considered the circumstances of the applicant. I accept on the information before me that the applicant’s sister passed away in February 2016, and that she suffered serious illness prior to this. I accept that the applicant may have felt isolated and suffered cultural shock on arrival in Australia. But I do not accept that these considerations fully explain the applicant’s behaviour. The applicant said that he ceased attending class around May or June 2015. His enrolment was cancelled in November 2015. The applicant took no steps to inform or contact his provider about the claimed reasons he could not study. He did not seek medical assistance in relation to his claimed inability to study. The applicant did not take reasonable steps, such as contacting his provider or seeking assistance from a medical professional which may have assisted him to continue or return to study, and would also act as evidence that he was unable to study in 2015, prior to the cancellation of his enrolment and then the death of his sister in February 2016. The applicant was in Australia for the purpose of study, yet he did not do so. He did not complete any subjects, and ceased attending shortly after arriving to study. He took no steps to return to study or to address the issues he claims to have had. He did not do anything about his enrolment having been cancelled, despite his claims that he was in Australia to study. Given that he ceased attending classes and studying such a short time after arriving, and that his enrolment was cancelled by his provider some months before the death of his sister I have grave doubts that the reasons he has provided are indeed why he did not study and did not maintain his enrolment. Even on returning to Australia after the death of his sister, having been told by the Doctor to return to Australia and study, he took no steps to study or even re-enrol. I do not accept that these things were beyond his control. I do not accept his claimed reasons for why he could not study, and then became unenrolled, for this period of time. I find that the applicant has not fully explained his behaviour in stopping studying and not maintaining enrolment in 2015 and I give this significant weight towards the visa being cancelled.

    past and present behaviour of the visa holder towards the department

33. The applicant responded to the NOICC and engaged with the department. I give this some weight in favour of the visa not being cancelled.

    whether there would be consequential cancellations under s.140

34. Not relevant.

    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

35. The applicant has remained in Australia on a bridging visa, and he will continue to hold one for some time after this decision. On being questioned he said that if the visa remained cancelled he would be in a tough situation, he would talk about it with his family and try to stay here for an opportunity to study but if he could not then he would go back to India.

36. if the visa remains cancelled the applicant will only be able to apply for a limited range of further visas. Given his evidence I do not accept he will become unlawful and liable to detention. I give this factor little weigh in favour of the visa being cancelled.

    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

37. The applicant said that he had come here to study and had taken some loans and it would be too difficult now to go back. He said the burden would be on him and his family.

1. I accept that there may be some financial hardship to the applicant and his family if the visa is cancelled. The applicant did not indicate any other reason or fear of return to India. I find that there is no information to support that any international obligation would be breached and give this facto no weight.

   if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

2. Not relevant.

   any other relevant matters.

3. I asked the applicant if there were any other relevant matters. He said that when they had cancelled his visa, they made no opportunities for him to study again, and if he was given the visa he would do his Masters again. I asked if he had made inquiries of an education provider where he could do his Master and he said he did not have permission to study. I asked if he would return to Charles Sturt and he said it is a good one so definitely. I asked if he had approached Charles Sturt about potentially resuming his studies and the steps he needed to go through to reenrol there and he said he had not as he did not have permission to study but if he went there and paid the fees they would enrol him straight away.

4. I noted that after what he had said to me I had real concerns that if he did once more hold his student visa that he would enrol and study – he had only studied for 2- 3 ½ months before stopping, he was not enrolled for a very significant period, he had not achieved any educational milestones, he had been told to study by his family and Doctor in India and he had not. I asked what confidence I could have that he would actually enrol and study. He said it had not been because he couldn’t’, or wouldn’t it was because of the situation and circumstances, and now he understands. He said his life has to be there and he had to get married, in India his parents had found someone and if he completed his Masters then he could return and get married. He said he now had understanding and would study with any conditions needed on the visa

5. . The applicant’s representative reiterated the evidence of the applicant and the submissions made previously. She said that when he had gone to get his BV E after his student visa was cancelled the officer told him he had to leave immediately and had no study rights.

6. I have carefully considered the evidence of the applicant but I find he has not provided any other relevant matters that go to the visa not being cancelled.

7. I have weighed all of the information and evidence before me. Ultimately, despite accepting that the applicant’s sister passed away in early 2016, and that he may have had some difficulty adjusting to life in Australia, I am not sufficiently satisfied by his evidence and the information before me that this explains the reasons for the breach in this case, nor his stopping attending and studying a significant period of time prior to the breach. Ultimately student visas are provided for the purpose of study. The applicant studied only for several months, did not complete any subjects, and remained in Australia, not studying, and then unenrolled, for a further year without taking any action. He did not study, nor do I have any confidence that, were he to have his visa reinstated, he would do so. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Sean Baker
   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.