Chilka (Migration)

[2019] AATA 4522

Chilka (Migration) [2019] AATA 4522 (18 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Vamshikrishna Chilka

CASE NUMBER:  1823296

HOME AFFAIRS REFERENCE(S):     BCC2018/1887988

MEMBERS:Dr Jason Harkess

DATE:18 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 18 July 2019 at 11:21am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – no deferral of his studies – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 7 August 2018 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 5 November 2016 with an original expiry date of 15 March 2019, providing for 2 years 4 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, a Master of Information Technology course at Charles Sturt University (‘the Masters course’). The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to maintain enrolment in a registered course of study.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. By letter dated 27 June 2019, the Tribunal invited the Applicant to attend a hearing to be conducted by telephone on 18 July 2019 at 11:00 AM in relation to his application for review. The letter was sent by email to the address that was nominated by the Applicant, for the purposes of communications with the Tribunal in relation to his application, when he lodged his application.

6. On 18 July 2017, the Tribunal made preparations for the formal hearing to be convened at 11:00 AM. The Tribunal made three attempts to contact the Applicant on his nominated international telephone number at 10:48 AM, 10:50 AM and 10:55 AM, but without success. In the circumstances, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.[1]

   [1] Section 362B(1A)(a) of the Migration Act 1958 (Cth) permits the Tribunal to proceed to make a decision in such circumstances.

7. For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 6 October 2017 to 7 August 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to approximately 10 months during which the Applicant was in continuous breach of the visa.

2. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[2] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

   [2] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The PRISMS report obtained by the delegate indicated that the Applicant commenced studying for the Masters course on 7 November 2016. However, on 6 October 2017 Charles Sturt University cancelled the enrolment due to the Applicant failing to pay fees. The PRISMS report further indicated that the Applicant did not re-enrol in the Masters course, or enrol in any other registered course, after 6 October 2017.

4. The Department of Home Affairs wrote to the Applicant on 25 July 2018, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

5. The Applicant provided a written response to the Department on 1 August 2018 (‘the Applicant’s NOICC response’). In that response, the Applicant appeared to acknowledge the breach of the visa condition. He stated that he ‘could not continue studies’.

6. Based on the material available, the Tribunal is therefore satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202 of the visa.

Consideration of the Discretion to Cancel the Visa

1. 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. In the Applicant’s NOICC response, the Applicant stated that when he first arrived in Australia in November 2016, he studied full-time during the initial semester of the Masters course. He stated that he attended all classes as was required. There is nothing before the Tribunal to contradict this assertion, and it appears that the Applicant’s account in this respect is consistent with the PRISMS report that was before the delegate.

3. The Applicant further stated that in 2017, ‘compelling circumstances came [his] way’. He explained that in August 2017 there were some personal family concerns that affected his whole family ‘in every way that includes the routine schedule, work and general living too.’ The Applicant did not further elaborate upon what these concerns were.

4. The Applicant stated that he became stressed and started feeling pressure, leading to the loss of interest in his routine activities. This, according to the Applicant, included a loss of interest in his studies. He said that, while he continued to attend classes, he was not studying. He said that he then went to a doctor for advice and treatment in relation to ‘a constant low mood and low concentration’ because he realised that his studies were being impacted. According to the Applicant, the doctor diagnosed him with depression and suggested that he commence treatment and counselling. The Applicant said that he told that doctor that he was ‘not able to cope with the current situation and was unable to return to family … as it will be over stressing for them to know about [his] psychological condition.’

5. The Applicant included with his NOICC response a medical certificate dated 11 September 2017 issued by Dr Walter Di Bartolo of the Moreland Health Centre. The Tribunal has inferred that Dr Bartolo is the doctor to whom the Applicant says he sought advice and treatment from. The medical certificate states that the Applicant was ‘receiving medical treatment for the period Monday, 11 September 2017 to Monday, 18 September 2017’ and that the Applicant was ‘unfit to continue his usual occupation during this period.’

6. Certainly this medical certificate would seem to corroborate the Applicant’s account of seeking help from a qualified medical professional. It also indicates that the Applicant was unwell such that he could not work or study for one week in mid-September 2017. But the Tribunal notes that this evidence goes no further than that. The medical certificate does not in any way constitute evidence from an independent medical professional that proffers a qualified opinion that the Applicant was suffering a clinically diagnosable mental health condition that was chronic in its nature. At most, this evidence suggests that the Applicant was temporarily unwell such that he was unable to study for a week in September 2017.

7. The Applicant further stated that, following his visit to Dr Bartolo on 11 September 2017, his psychological condition did not improve. However, there is no evidence before the Tribunal that suggests that the Applicant followed Dr Bartolo’s advice by undertaking further treatment and counselling. It appears the Applicant chose not to do so and, if indeed the Applicant was in such a state, there is no satisfactory explanation given by the Applicant as to why he did not seek further professional help.

8. The Tribunal acknowledges the Applicant’s further statement in his NOICC response that he ‘had no intention to breach [his] visa condition knowingly or on purpose.’ However, his statement does not amount to a satisfactory excuse for breaching his visa. It is not uncommon for student visa holders to become stressed as a result of family or other social problems developing while they are away from their home country. However, such difficulties do not constitute a satisfactory excuse to de-prioritise the obligation to comply with essential conditions of the student visa. The visa holder must adapt to such situations while continuing to abide by the law. That means they must continue to remain enrolled and study.

9. The Tribunal notes that the Applicant provided no independent psychological evidence, beyond the written assertions of the Applicant himself, that can account for his mental state at the time. The Tribunal is therefore unable to accept the suggestion by the Applicant that he was suffering a clinically diagnosable mental health condition during the time he was in continuous breach of his visa. The Tribunal further notes that there is no evidence suggesting that his personal problems were of such significance that he notified his course provider of the difficulties he was having. At no stage did he seek a formal deferral of his studies for compassionate reasons in order to deal with his personal issues. In these circumstances, the Tribunal has formed the view that his personal suffering arising from his unspecified family issues falls into the category of ordinary mental difficulties that people generally suffer on a daily basis in dealing with life stressors.

10. In the end, the Applicant’s explanation of the situation effectively amounts to a statement that he was unable to deal with his personal problems while, at the same time, maintaining his legal obligation to comply with an essential condition of his student visa. He chose not to comply with an essential visa condition. By doing so, his student visa no longer had an effective operating purpose.

11. The Tribunal has taken into account that, if his visa is cancelled, the Applicant’s hopes of obtaining an Australian qualification will be dashed. He will be disappointed, his family will be disappointed, and he will suffer some degree of financial loss and inconvenience for having to return to India without a Masters degree. However, this concern must be tempered with the breach of the most fundamental condition of his visa that spanned a lengthy period.

12. The Tribunal notes that if the visa is cancelled, the Applicant may become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of visa conditions.

13. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations that would occur by the operation of s 140 of the Act if the Applicant’s visa is cancelled.

14. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements for him to depart Australia. He is a citizen of India and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

15. Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

16. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member