Chennupati (Migration)

[2019] AATA 4455

Chennupati (Migration) [2019] AATA 4455 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kalyan Chennupati

CASE NUMBER:  1813972

HOME AFFAIRS REFERENCE(S):           BCC2018/169250

MEMBER:D. Petrovich

DATE:20 September2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 September 2019 at 3:50pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – non-payment of fees – financial support – demonetisation – mental health – unenrolled 11 months – decision under review affirmed

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 May 2018 made by a delegate of the Minister for Home Affairs 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 visas holder had not been enrolled in a registered course of study since 30 May 2017 and therefore does not meet the requirements of condition 8202(2)(a). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 2 September 2019 to give evidence and present arguments.

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)

   ·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).

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

8. The applicant is a 25 year old male and a citizen from Hyderabad, India. His parents continue to live in India where they run a real estate business, he is their only child. Prior to obtaining a visa to study in Australia the applicant completed a four year Bachelor Degree in Electronics and Communication Engineering. The applicant was enrolled in a Master of Information Technology at Charles Sturt University and was enrolled from the 18 July 2016 after arriving in Australia and having been granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 01 April 2016. The applicant was notified of the intention to consider cancellation on 03 April 2018 and had not been enrolled between the period 30 May 2017 and 03 April 2018. This information was included in the delegates decision provided by the applicant and included PRISMS information.  The applicant submitted during the hearing that he had failed to pay his enrolment fee due to leaving his payment till just before the exam period in April, (as advised by friends) when he could then not pay his enrolment fees due to insufficient funds, brought about by Demonetarisation in India. The University cancelled his enrolment due to non-payment of fees and the applicant received NOICC on the 3 April 2018, to which he responded on the 19 April 2018 and admitted that he understood the conditions of his visa in his response and at the hearing, and that maintaining enrolment was one of those conditions and the repercussions of not being enrolled “I have known for a fact that a visa ones hold may be cancelled and or may lead to removal from the country”  On the evidence before the Tribunal, the applicant was not enrolled in a registered course for the period of eleven months. Accordingly, the applicant has not complied with condition 8202(2).

9. The applicant provided the Tribunal with the following documentation prior to the hearing:-

   ·     Response to Notice of intention to Consider Cancellation

   ·     Email from Charles Sturt University and response from Applicant in regard to Enrolment Cancellation in Progress due to breach of visa conditions

   ·     Email: 1 May 2017 asking for extension to pay by applicant to Charles Sturt University

   ·     Email: 3 May 2017asking for extension to pay by Applicant to Charles Sturt University

   ·     Email in response to Final Reminder from Charles Sturt University 5 May 2017

   ·     Email to ombudsman 8 May 2017

   ·     Emails relating to opening link so applicant can participate in quiz 1 May 2017; 4 May 2017, 6 May 2017

   ·     Copies of Course work by the applicant

   ·     Article relating to Demonetisation in  India

   ·     Copies of financial statements for Mr. Chennupati Subbarao (father of the applicant) 17 August 2019(provided at hearing)

   ·     Tax receipt invoice Sydney Health $294 (at hearing)

   ·     Prescription for Circadin (provided at hearing)

   ·     Discharge referral from Sydney health dated 12 August 2019, relating to possible panic attack in relation to his AAT hearing (at hearing)

   ·     NSW Ambulance 12 August 2019 Invoice for $420  (provided at hearing)

   ·     Article The Hindu relating to Demonetisation (provided at hearing)

   The Tribunal has considered all the documentation provided by the applicant in making its decision, the documents provided in relation to the applicant’s cancellation of enrolment and the correspondence in relation to this have been considered by the Tribunal and are given little weight.

   The applicant’s email to the ombudsman was not accompanied by any response and therefore of little weight in the Tribunals consideration.

   Copies of Course work and request for link so the applicant can participate in quiz on the 3 May 2017, and copies of course work, may demonstrate that the applicant was endeavouring to continue to study but was unable to because of non-payment of fees.  The Tribunal gives some small weight in favour of the applicant.

   In relation to documents relating to Ambulance, Hospital admission and medication provided to assist the applicant to sleep, the Tribunal accepts that the applicant may have had a panic attack relating to the applicant’s appearance at his appeal hearing at the AAT as per the Medical report provided, and whilst sympathetic, places only small weight in the applicants favour.

   In regard to articles relating to Demonetisation, the Tribunal has read and had regard to these documents but places little weight in the applicant’s favour in this regard.

   Psychological assessment Report on the applicant submitted on behalf of the applicant by Edwin Kleynhans Psychologist. The Tribunal has noted the assessment based on a facetime interview on 29/8/2019 and given the report due consideration.         

   Consideration of the discretion to cancel the visa

10. 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’

    Applicants purpose of travelling and staying in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

11. During the course of the hearing the applicant confirmed that his intended purpose was to remain in Australia and Study a Masters of Information Technology.

    The applicant did not maintain his enrolment in a registered course in accordance with his visa conditions. The applicant conceded to the Tribunal that he had breached condition 8202(2)(a) by failing to be enrolled in a course until the cancellation of his visa on 03 May 2018 a period of approximately 11 months, while remaining in Australia on a visa granted for the purpose of study. The Tribunal is satisfied that the applicant’s intention at the time of the visa application was to study, but has become less of a compelling need as evidenced by the applicants approach to study, his academic record and casual attention to emails and payment of his University fees, and remaining un-enrolled for 11 months.  Accordingly, the Tribunal in considering this evidence gives weight against the applicant in this regard.

    Compliance with visa conditions

12. The applicant was not enrolled in a registered course for 11 month (approximately). The applicant’s visa was cancelled on 3 May 2018. As such he has remained in Australia without having complied with the conditions of his visa, a period of approximately 11 months. The Tribunal considers the period of non-compliance to be significant.

13. The Tribunal considers that the applicant’s non-compliance with his visa conditions is significant and as such gives weight against the applicant in considering this factor.

    The degree of hardship that may be caused to the Applicant

14. The applicant’s evidence is that he wanted to complete his Masters in Information Technology at Charles Sturt or another University, so that he could return home to India. As the only son he felt a lot of pressure to achieve his qualification and so not be an embarrassment to his family.  The applicant also asserted that his father and mother had supported him financially and were covering for him in his community at home for not currently studying and that his father would be very hurt if he returned home with no qualifications. The Tribunal accepts that the applicant and his family may experience some hardship as a result of the perceived embarrassment experienced. The applicant’s family may experience some emotional, financial, psychological hardship as a result of their son not completing his study and returning home without his qualification.  The Tribunal in consideration of this places no weight for the applicant in this regard.   

15. The Tribunal accepts that by not completing his Masters of Information technology that the applicant may be restricted in obtaining a better position upon returning to India, although this was not mentioned by the applicant in submissions to the Tribunal.

16. The Tribunal notes that in the event that the applicant’s visa is cancelled, under s.48 of the Act he may have limited options available to him if applying for a further visa in Australia.  In addition he will be subject to Public Interest Criterion 4013 which means that he may not be granted a temporary visa for three years from the date of cancellation.

17. Nevertheless the Tribunal acknowledges that if the applicant’s visa is cancelled he will suffer some hardships by having to return to India without a Masters in Information Technology and as such has given some weight to the hardship the applicant may suffer in the event that his visa is cancelled..

18. The Tribunal also acknowledges that the applicant has suffered stress and anxiety as a result of his circumstances and in anticipation of his hearing. This culminated in him being taken to Concord Repatriation hospital in Sydney on 12 August 2019. He was diagnosed “with what sounds like a panic attack”. On examination his symptoms had completely resolved, and he was sent home with a general care plan and Melatonin to help him sleep. The Tribunal accepts this evidence and in considering this places neutral weight in relation to this evidence.   

    The circumstances in which the grounds for cancellation arose      

19. The applicant conceded to the Tribunal and in his response to the NOICC that there were grounds for the cancellation of his visa.  However he stated that his visa should not be cancelled by reason that demonetisation had affected his ability to pay.   

20. The applicant made submissions in his response to the Notice of intention to cancel his enrolment and his evidence provided during the hearing that he had struggled in his first term of study as this was a huge adjustment for him.  He admitted that he did not do very well academically which is evidenced by his statement of academic progress provided by the applicant.  He refocussed in his second semester, attended classes more regularly and was achieving better results. The applicant provided copies of course work, and emails requesting that he be able to access the link to participate in a quiz on 1 May 2017, 4 May 2017 and 6 May 2017. He was also corresponding with the University at this time asking for extensions to pay, which he  states in his response to Notice of Intention to Consider Cancellation that “ it was already in the Ultimatum grace period’ with the University.  The Tribunal, in considering this evidence the Tribunal acknowledges that the applicant had adjustment difficulties, and his academic progress was poor, he appears to have made an effort to improve academically but failed to attend to his enrolment.  The Tribunal does not consider that these are extenuating circumstances in this case and gives no weight to this evidence.       

21. The applicant admits that he failed during this time to pay his enrolment relying on poor advice from friends that he could pay as long as it was before the final exam. He did not check his emails regularly and discovered that he had a final notice for payment of his fees to avoid cancellation of enrolment.  He then submits he was then unable to pay his fees because of a demonetisation which the applicant told the Tribunal prevented the sending and receiving money from overseas, making it not possible for his parents to send the money to pay his fees. The Tribunal in considering this evidence finds that the applicant has not taken the enrolment criteria seriously and relied on poor information which he did not verify in leaving payment to the University until too late. The Tribunal finds that the applicant had not paid his fees by the due date and in considering this gives no weight..

22. He has told the Tribunal that demonetisation in India had prevented payment, which may have been true; however, there is no evidence to my knowledge of other students experiencing this difficulty at this time, and it would be expected that this would not just affect this student. The Tribunal in considering this gives this no weight.  

23. It is clear in the email correspondence provided by the applicant between the University and himself that when the applicant responded on May 2017 to an email from Charles Sturt University advising the applicant that his warning period had expired, the email advised that if his fees were not paid by 20 April 2017 that the result would be that he would be reported to Department of Immigration and Border Protection and cancellation of his enrolment at Charles Sturt University.  It stated that this was his final warning and final chance to save his enrolment. The Tribunal in considering this gives this no weight on the basis that the applicant had been notified that the date for payment had passed.

24. Tribunal accepts that the applicant has endeavoured to rectify his enrolment with Charles Sturt University and has been unsuccessful in his attempt to do so. The Tribunal in considering the timing and dates of the correspondence it would appear that applicant has not been successful in paying his enrolment as the due date had passed on the 20 April 2017. The tribunal in considering this gives it no weight.  

25. The applicant sent several further emails advising the University that there was a problem with his account and that he would pay by the 22 May 2017. These were sent by the applicant on 3 May 2017, 4 May 2017, 6 May 2017. In considering this correspondence it would appear that the applicant was already out of time when he made his first contact to ask the University for further time to pay his fees and had been advised of this by the University on the 20 April 2017. There is no evidence before the Tribunal that the applicant has paid the outstanding fees. The Tribunal in considering this evidence gives no weight to the applicant’s correspondence and attempt to rectify non- payment of fees, as he was clearly out of time with the University and in breach of his visa conditions.

26. The applicant provided current bank statements in the name of his father Mr. Chennupati Subbarao containing $150,000000 ($30,000.00Au), and 170,000000 ($34,000.00) both dated 17 August 2019, the applicant submitted that “his financial situation was very good” 

    
    

    The Tribunal in considering this evidence is unconvinced that the applicant would be the beneficiary of this money for the purpose of enrolment as he remained un-enrolled for a period of 11 months before his visa was cancelled, and if this money was available it should have been used for his enrolment in order to maintain his visa. The Tribunal gives no weight in this regard.     

27. The applicant accepted and was aware of the conditions of his visa and understood that his enrolment was a condition of his visa and made this statement in his response to the Notice of Intention to Consider Cancelation “I have known for a fact that a visa ones hold may be cancelled and or may lead to removal for the country”. Whilst the applicant submits that “he didn’t have the intention of not paying his fees to maintain his enrolment but it was due to the fact of hardship of transmitting money from overseas due to demonetisation”. The Tribunal does not accept that the applicant in this case had circumstances in which the ground for cancellation were beyond his control because the applicant failed to pay his fees when they were due; instead taking poor unsubstantiated advice from his friends, he then remained un-enrolled for a period of 11 months. The tribunal gives this no weight.  

28. Therefore, in circumstances where the applicant was aware of his visa conditions, and had previously maintained his enrolment; the Tribunal does not accept evidence that he had not been enrolled in a registered course for the reason of demonetisation in India as a reason for not paying his University fees as this issue would have been of more significance in the broader Indian student community at the time, this does not seem to be the case.  The Tribunal is more willing to accept complacency on the part of the applicant in this regard.  Accordingly, the Tribunal has considered the evidence presented and gives no weight in this regard.

    Past and Present Behaviour towards the Department

29. The applicant has been cooperative and courteous in his dealings with the tribunal. There has been no adverse information provided to the Tribunal in relation to evidence of unco operative or bad behaviour in relation to the Department of Immigration, and as such some weight is given to the applicant in this regard.

    Persons in Australia whose visa would be cancelled s.140.

    There are no other persons whose visa would be cancelled under s.140.  The Tribunal gives neutral weight to this issue.

    Are there Mandatory Legal Consequences

30. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three year exclusion period unless he meets the relevant public Interest Criterion.  The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicants favour

    Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled

1. The circumstances in this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

   Other relevant factors

2. Having considered the evidence presented by the applicant at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.

3. Therefore, considering all of the circumstances before the Tribunal, and in weighing up all factors those factors the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Donna Petrovich
   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.