CHIDDAMSETTY (Migration)

[2020] AATA 615

CHIDDAMSETTY (Migration) [2020] AATA 615 (3 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhilash Chiddamsetty

CASE NUMBER:  1827297

HOME AFFAIRS REFERENCE(S):          BCC2018/1903374

MEMBER:David McCulloch

DATE:3 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 03 March 2020 at 3:40pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine student – has not completed course – robbed – temporary financial issues – could not cope with study – did not enrol when funding available – lack of extenuating circumstances – lack of academic progress – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth),r 2.43

CASES

MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born on 6 March 1994. The visa that has been cancelled was granted on 16 November 2016.  The stay period on the visa was until 15 March 2019.

3. On 29 August 2018, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Act. The applicant did not respond. On 13 September 2018, the delegate decided to cancel the Student visa held by the applicant under s.116(1)(fa) of the Act because the delegate formed the view that the applicant was not a genuine student.

4. The applicant sought review of that decision. The issues that arise on review are:

   a.does the ground for cancellation exist?

   b.if so, should the visa be cancelled?

5. The applicant appeared before the Tribunal on 25 February 2020 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing. The applicant communicated with the Tribunal in English.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   RELEVANT LAW

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy, as set out in the Departmental guidelines, Procedures Advice Manual (PAM3).

8. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

9. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s.116(1)(fa)(i) is ‘directed to circumstances where a Student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

10. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are:

    …

    (1C)    For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)    For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    a.because of the conduct of the holder; or

    b.because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    c.because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    d.on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.

11. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

12. The applicant provided a copy of the delegate’s decision record to the Tribunal, which sets out the following information:

    The visa holder arrived in Australia on the TU-500 Higher Education Sector visa on 31 January 2017 and has remained onshore since.

    It has now been 1 year and 8 months since he was granted the TU-500 Higher Education Sector visa.

    Since being granted the TU-500 Higher Education Sector visa the visa holder has not completed any registered courses.

    The visa holder has only been actively involved with study for approximately 11 months.

    According to PRISMS records the visa holder's enrolment with University of Technology Sydney (UTS) was cancelled due to non-payment of fees on 09 October 2017.

    Education Provider UTS informed the Department the visa holder was issued warning letters dated 20 August 2017 and 04 October 2017 relating to overdue fees and non­payment of tuition fees. In addition, University of Technology Sydney (UTS) has provided a copy of the visa holder's transcript which indicates that he has not achieved satisfactory course progress in Master of Engineering (Extension) course as he failed all units attempted for Autumn Session 2017.

    Records available on PRISMS in relation to you indicate that the visa holder is currently undertaking a study in Graduate Diploma of Engineering at ECA Graduate Institute Pty Ltd with course period from 15/05/2018 to 10/5/2019. I take note this is Vocational and Education Training (VET) course which is not a Higher Education Sector level course required of your visa.

    On 19 July 2018, the Department received information from ECA Graduate Institute Pty Ltd stating the visa holder enrolled in 10 units for the Graduate Diploma of Engineering and failed one unit. The visa holder's attendance is 0% (Attendance spreadsheet and Student at Risk Form dated 29 May 2018 were provided).

    In addition Education Provider ECA Graduate Institute Pty Ltd notified the Department the visa holder was issued with a warning letter dated 14 August 2018 relating to unpaid tuition fees and an Intention to report notice dated 04 June 2018 relating to unpaid tuition fees.

    The TU-500 Higher Education Sector Visa is not due to expire until 15 March 2019.

13. In the hearing the Tribunal went through with the applicant all of the factual claims made in terms of the applicant’s study history and progress as outlined in the extract from the delegate’s decision. The applicant indicated that all of the information was correct except for the claims that the applicant received warning letters from UTS dated 20 August 2017 and 4 October 2017. The applicant indicated that he did not receive these warning letters as they went to his agent’s email address. However, the applicant indicated in the hearing that he knew that he had fees for his second semester due.

14. The applicant indicated that in September or October 2017 he approached the office of UTS to make enquiries about the payment of course fees but was told that his enrolment was already cancelled. The applicant indicated that at the time that he visited the office he did not have the funds to pay the fees but these came through some time in October 2017. The applicant indicated that he did not take steps to re-enrol in the Master’s of Engineering because of the negative treatment and behaviour he had received from the individual who he made enquiries of at the UTS office. This behaviour made him reluctant to seek re-enrolment.

15. As enrolment records indicate, the applicant, on 17 April 2018, enrolled in a Graduate Diploma of Engineering, which he did not commence. The applicant enrolled again on 15 May 2018 in the Graduate Diploma of Engineering, which commenced on 15 May 2018. In the hearing, the applicant indicated that he attended this course for only about one week. He indicated that he could not cope with the content of the course, which was not in his field of expertise, that is, chemical engineering.

16. The Tribunal discussed with the applicant why, as enrolment records available to the Tribunal suggest, he has not subsequently enrolled in any additional course after ceasing his study in the Graduate Diploma of Engineering. The Tribunal noted that there is no limitation on the applicant’s bridging visa in terms of his ability to study. In response, the applicant indicated that he has made many attempts through multiple agents exploring avenues for enrolment in suitable courses. However, there have been hurdles to the applicant being accepted for enrolment.

17. The Tribunal asked the applicant what his intentions are if the visa is reinstated. In response, the applicant indicated that he would wish to undertake a Graduate Diploma in Management Science. He would have the skills to be able to cope with this course given his background in chemical engineering. The applicant indicated that this would be the first step to later enrolment in a Master’s of Engineering.

18. The Tribunal put to the applicant that it would have expected that if the applicant was or had been a genuine student that he would have enrolled in and studied the course that he states that he now wishes to study at an earlier opportunity. Indeed, on the applicant’s evidence he has not been studying since the end of May 2018. In response, the applicant indicated that he has been unable to obtain appropriate advice as to his options. The applicant indicates that he has just realised that the pathway he should take is to initially study a Graduate Diploma and then progress to a Master’s course. As put to the applicant in the hearing, the Tribunal has great difficulty accepting that the applicant, if he was genuine in his study intentions, would have taken approximately 21 months to determine appropriate study options and pathways.

19. The Tribunal put to the applicant that relevant to the issue of him being a genuine student is the fact that he appeared to have breached condition 8202 of his visa to be enrolled in a registered course. The Tribunal indicated that enrolment records indicated that he was not enrolled in a registered course from 9 October 2017 until 17 April 2018. In response the applicant indicated that he was robbed in November 2017 and that created hurdles in him re-enrolling after the cancellation of his Master’s of Engineering. The Tribunal would accept some hurdles and difficulties from being robbed but it did not justify six months of not being enrolled in a registered course. The applicant did not claim that the robbery affected his ability to fund any course. The Tribunal draws some adverse inference from this period of non-enrolment in determining whether the applicant is a genuine student. 

20. The Tribunal also indicated to the applicant that adverse to his claims that he was a genuine student (for the purpose of the type of visa that he held) was that from the time of the cancellation of his Master’s of Engineering until the cancellation of his visa on 13 September 2018, the applicant appeared to be in breach of condition 8516, which effectively required him to be enrolled in a higher education sector course. The applicant acknowledged that he was not so enrolled from 9 October 2017 until 13 September 2018. The applicant indicated that he could not cope with this level of course. This is adverse as to the applicant being a genuine student for the purpose of the visa category that he had entered Australia on.

21. The Tribunal has considered the study background of the applicant as set out in the delegate’s decision combined with further evidence and issues discussed with the applicant in the Tribunal hearing. Considering the applicant’s study history, including his lack of any study from May 2018 until currently, together with his failure to be enrolled in a registered course for a not inconsiderable period, as well as his period of not being enrolled in a higher education sector course as required by his visa, the Tribunal is readily satisfied that the applicant is not, or is likely not to be, a genuine student.

22. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

23. 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’. 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 (ie. 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.

24. The applicant has made various claims in terms of extenuating circumstances beyond his control for his failure to be a genuine student. The applicant has indicated temporary finance issues in terms of being able to pay his fees for the second semester of 2017 of his Master’s of Engineering. However, the Tribunal does not consider that these created medium or long-term funding difficulties because, on the applicant’s own evidence, the funding became available in October 2017. The Tribunal is prepared to accept for the purpose of this decision that these temporary funding issues were at least part of the reason that the applicant’s enrolment in the Master’s of Engineering was cancelled. However, adverse to the applicant is that he did not re-enrol in the Master’s after funding became available. It is more readily apparent to the Tribunal that the applicant was not able to cope with his Master’s degree. On the applicant’s own evidence he failed four of four units that he studied in the first semester of 2017.

25. The Tribunal would not take an inability to cope with his studies as an extenuating circumstance beyond the applicant’s control. The applicant obtained the higher education sector visa with an expectation of appropriate performance within that level of study.

26. In any event, it is apparent that the applicant was not able to cope with study at the lower level of the Graduate Diploma of Engineering, given his inability to progress with his studies for more than one week. The Tribunal would not be satisfied that there are extenuating circumstances beyond the applicant’s control that explain this.

27. The Tribunal would make some allowance in terms of a period of time to enable the applicant to receive appropriate education advice from migration agents and the like and to consider appropriate options and pathways in terms of education options. As it is however, 21 months has passed since the applicant stopped studying the Graduate Diploma of Engineering without the applicant enrolling in or studying any course. The Tribunal is not satisfied that this is justified by extenuating circumstances beyond the applicant’s control in terms of being able to get appropriate advice or properly consider his study pathway.

28. The Tribunal would expect that if the applicant genuinely intends a study pathway in Australia, he would have enrolled and studied in his desired course at a much earlier period of time. This would both give the applicant ‘runs on the board’ in terms of his progression of study, as well as demonstrating to the Tribunal a genuine and sincere attempt to progress on the desired study pathway.

29. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that explain why he is not, or is not likely to be, a genuine student.

30. The Tribunal takes as adverse to the applicant his breach of visa condition 8202 to be enrolled in a registered course and his breach of condition 8516 effectively requiring him to be enrolled in a higher education sector course.

31. The applicant indicated that the key hardship for him if the visa remains cancelled would be his inability to progress on his desired study pathway from a Graduate Diploma of Engineering to a Master’s degree. The desire to undertake these courses would also constitute a compelling need for the applicant to remain in Australia. As indicated, the Tribunal would consider that if this were such a hardship or a compelling need for the applicant that he would have progressed on this pathway at a much earlier opportunity.

32. The applicant also indicated that it will be a hardship if he is to return to India making such poor progress in terms of his studies in Australia. The Tribunal accepts some hardship in this respect.

33. The Tribunal accepts a hardship if the visa remains cancelled in terms of the applicant’s inability to obtain many other categories of onshore visas.  If the visa remains cancelled, there is a risk that the applicant could be an unlawful noncitizen if he is denied a bridging visa and thus potentially subject to immigration detention. However, the Tribunal has no reason to consider that the applicant would not continue to maintain eligibility for a bridging visa, which he currently holds.

34. The applicant indicates that there are no children in Australia whose interests would be affected by the continued cancellation of the visa. The applicant indicates that he does not fear persecution or significant harm on return to India (albeit that he claims there may be difficulties because of his lack of progress in Australia). The Tribunal therefore does not consider that Australia’s non-refoulement obligations are enlivened.

35. In summary, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that explain that the applicant is not, or is likely not to be, a genuine student. Adverse to the applicant is the applicant’s lack of study since May 2018. The Tribunal draws as adverse to the applicant his breach of visa conditions 8202 and 8516. The Tribunal does not accept any significant hardship to the applicant in terms of his inability to study in Australia given his lack of progress in terms of his studies or any recent enrolment study. The Tribunal accepts some hardship to the applicant in terms of any desire that he would prefer to remain in Australia or family or other individuals in India being disappointed with him on his return as to his lack of progress in Australia. The Tribunal accepts some hardship to the applicant in terms of his inability to apply for many other visas onshore if the visa remains cancelled.

1. Weighing up discretionary factors both in the applicant’s favour and adverse to the applicant, the weight of matters clearly cause the Tribunal to exercise its discretion to cancel the visa.

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

   David McCulloch
   Member

   
   

   ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

   …

   (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

   (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

   (a)because of the conduct of the holder; or

   (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

   (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

   (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.