Dabbu (Migration)

[2020] AATA 2341

Dabbu (Migration) [2020] AATA 2341 (27 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ranadheer Dabbu

CASE NUMBER:  1833503

DIBP REFERENCE(S):  BCC2018/3820120

MEMBER:Peter Newton

DATE AND TIME OF

ORAL DECISION AND REASONS:         27 February 2020 at 11:18 am (NSW time)

DATE OF WRITTEN RECORD:                10 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (class TU) Student (subclass 500) visa.

Statement made on 10 June 2020 at 9:48am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – study difficulties – non-payment of fees – applicant lent money sent by parents for fees to flatmate – delayed and partial repayment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

APPLICATION FOR REVIEW

1.    This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 November 2018 (Delegate’s Decision) to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (Cth) (Act).

2.    At the hearing on 27 February 2020 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. The Delegate cancelled the visa on the basis that in breach of condition 8202 (a) of schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) the applicant was not enrolled in a registered course of study from 10 October 2017.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.     The applicant appeared before the Tribunal on 27 February 2020 and gave evidence and made submissions in support of his application. 

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 Regulations. If the applicant has breached that condition, under section 116 (1) of the Act, the visa may be cancelled.

Did the Applicant Comply with Condition 8202?

6.    Condition 8202, so far as it applies to this case, requires the applicant to be enrolled in a registered course, or in limited cases, a full-time course of study or training: 8202 (2).

7.     As indicated, in the present case the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course of study from 10 October 2017.  The applicant accepted that he has not been enrolled in a registered course of study since 10 October 2017.  The applicant accepted that his enrolment was cancelled by the education provider for non-payment of fees.  The applicant accepted that he has not subsequently enrolled or obtained enrolment in a registered course of study since 10 October 2017.

8.    On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study from 10 October 2017.  Accordingly, the applicant has not complied with condition 8202 (2).

Consideration of the Discretion to Cancel the Visa

9. 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 the case including the matters raised by the applicant against the matters in the Department’s Procedures Advice Manual (PAM3) ‘General Visa Cancellation Powers’.

1. By reference to the following factors, the evidence and submissions set out below is the most relevant to my determination:

• The purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia

1. The applicant was born in India on 11 April 1993.  On 30 November 2016 the applicant was granted a student visa offshore.   The applicant was granted the student visa on the basis that he be enrolled in a full-time registered course of study.  The applicant obtained enrolment in a Master’s Degree for the Master of Information Technology course at Charles Sturt University.  The course had a start date of 20 February 2017 and an end date of 22 February 2019.  The applicant says he obtained enrolment in the Master of Information Technology course offshore. 

2. On 9 February 2017 the applicant arrived in Australia.  The applicant says that he paid the first semester’s fees and in February 2017 commenced studying the Master of Information Technology course at Charles Sturt University.  The applicant attended University throughout the first semester.  He said he experienced difficulties and only passed one of the first three subjects.

3. The applicant says that the first semester concluded in about May 2017.  The applicant paid the initial fee for the second semester.  He commenced studying the second semester at the end of June, early July 2017. The circumstances of cancellation are considered in greater detail below, however the applicant said he did not pay the balance of the course fees for the second semester and on 10 October 2017 the education provider cancelled his registration in his course of study due to non-payment of fees.

4. As stated, the applicant was granted the student visa on the basis that he be enrolled in a full-time registered course of study.  The visa was granted on 30 November 2016.  He commenced the first semester of study in February 2017.  He attended for the first semester of study.  He says he commenced but did not complete the second semester of study because he did not pay his fees.  Consequently, on 10 October 2017 his enrolment was cancelled.  The applicant has not complied with the purpose for which the student visa was granted.  I give this factor some weight against the applicant.

5. I asked the applicant during the hearing whether there was any compelling need for the applicant to remain in Australia.  The applicant candidly said there was no compelling need to remain in Australia unless he was allowed to study the Master of Information Technology course.  The applicant said that he wishes to study the Master of Information Technology course.  He said he had been enrolled in a Master’s course and if he gets his study rights again he will apply for enrolment in a Masters of Information Technology course.  Having regard to the purpose of the applicant’s travel and stay in Australia, the fact the applicant only attended one full semester of study, the applicant failed to pay the balance of the fees owing in relation to the second semester of study and his enrolment was cancelled approximately eight months after first arriving in Australia and just over one year after the visa was granted, the Tribunal places no significant weight on the applicant’s desire or need to remain in Australia for the purpose of undertaking study in the same course that he had previously been enrolled in and cancelled.

• The extent of compliance with visa conditions

1. Condition 8202 is a mandatory condition applied to a student visa which obliges visa holders to remain enrolled in a course of study and, depending on the course, either meet attendance requirements or meet academic progress requirements.

2. Student visas are granted for the purpose of studying towards and achieving an educational qualification in Australia.  The student visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted the student visa, the visa holder’s primary intention must be to study, maintain enrolment, attendance and course progress, in a Commonwealth Register of Institution and Courses of Overseas Students (CRICOS) registered course.  The applicant accepts his enrolment was cancelled and he has not been enrolled in a registered course of study since 10 October 2017.  As stated, the applicant’s enrolment was cancelled within eight months of arriving in Australia for the purpose of study.  The applicant attended the first semester of studies.  However he only passed one of the first three subjects.  He commenced but did not complete the second semester and his course of study was cancelled before the end of the second semester.  Having regard to these factors, I place some weight against the applicant for the applicant’s breach of condition 8202 (2) by not being enrolled in a registered course of study since 10 October 2017.

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

1. During the hearing I invited the applicant to address this factor.  He said that if his visa is cancelled and the Tribunal affirms the Delegate’s Decision he will need to face his father.  He said that he needs to do his Masters.  The Delegate’s Decision records that in response to the NOICC the applicant indicated that the cancellation of his visa will affect his opportunity to study further in Australia.  I accept that this is a degree of hardship.  I also accept that there will be disappointment and some emotional issues when returning to his home country and explaining to his father that his visa has been cancelled.  However, I do not place significant weight on this hardship due to the extent of non-compliance with the visa and the applicant has now been in Australia for over three years and has not been enrolled in any course since cancellation of his visa on 10 October 2017.  The degree of hardship that may be caused to the applicant is the consequence of his non-compliance with the visa conditions.  There may also be some hardship for the visa holder departing Australia.  However he may be eligible to apply for a Bridging visa E which will allow him to remain in Australia temporarily enabling him to finalise any outstanding matters.  There is no evidence that any family members will be adversely affected other than the disappointment of the applicant’s father which I have dealt with.  Overall, having regard to the evaluative exercise I am required to undertake, I place no significant weight on the degree of hardship that may be caused to the applicant by the cancellation of his visa.

• Circumstances in which grounds of cancellation arose

1. The Delegate’s Decision records the grounds upon which the cancellation arose.  During the hearing the applicant gave evidence as to the grounds of cancellation that arose.  The grounds of cancellation summarised in the Delegate’s Decision are consistent with the evidence given by the applicant at the hearing.  As stated, the applicant confirmed at the hearing that the student visa was granted offshore on 30 November 2016.  He acknowledged that he obtained enrolment offshore in the Master of Information Technology course at Charles Sturt University. 

2. The applicant says he first arrived in Australia on 9 February 2017.  The applicant says he paid the fees for the first semester and he commenced studying for the first semester in February 2017.  The applicant said he experienced some difficulties during his first semester of study.  I understand he completed the first semester, however he only passed one of the first three subjects.  The applicant says that the first term concluded in May 2017. 

3. The applicant said that he paid the initial fee for the second semester which commenced at the end of June, early July 2017.  He said that the second semester was due to end in or about October 2017.  The applicant commenced studying for the second semester.  He said he did not pay the balance of the fees for the second semester.  His failure to pay were in the following circumstances: - his parents sent the applicant money to meet the balance of the fees due for the second semester in about June 2017 in the sum of about $5,000; the applicant said that when he first arrived he lived in an apartment in Strathfield; he knew no one when he first arrived and a friend of his from India referred him to an overseas student from India who was studying in Australia; the applicant could not recall his surname but said that his Christian name was “Anil”; the applicant commenced living with Anil when he first arrived in Australia; a short time after the applicant’s parents sent him money to meet the balance of the fees payable for the second semester, Anil asked him for a loan; Anil said that he would repay it in a short period of time; Anil said that he was having difficulties paying his university fees; notwithstanding this and the fact that his parents had given him money for the purpose of meeting his own education fees, the applicant said that within a day or two of receipt of the monies from his parents he lent the monies to Anil; Anil did not repay the monies; the applicant pursued him for payment promptly; the applicant said that over a period of time and before cancellation of his enrolment Anil had made a series of payments of about $500 totalling $2,500; by this time the applicant says that Charles Sturt University was requesting payment from him of the balance of the fees owing for the second semester.  The applicant says he did not tell anyone from the University of the problems he had encountered.  He did not tell his parents as he was embarrassed.  The applicant moved out of the apartment with Anil and moved in to another apartment in the same area.  I understood that the applicant ceased attending studies because he was being pursued for payment.  On 10 October 2017 the applicant received notice from Charles Sturt University that his enrolment had been cancelled for non-payment of fees.  He has not returned to study since and nor has he been able to obtain enrolment in any other course of study.

4. During the hearing the applicant said that at all times he was aware that it was a condition of his visa that he must maintain enrolment in a registered course of study.  During the hearing the applicant accepted that if he did not pay his fees for his course of study, enrolment may be cancelled.  The circumstances in which the grounds for cancellation arose occurred when the applicant failed to pay fees which had been provided to him by his parents for the purpose of study.

5. The explanation given by the applicant for failing to pay fees for the second semester is sad, unfortunate but not a satisfactory reason for not paying the balance of the fees due for the second semester of study.  I give some but no significant weight to this explanation in the applicant’s favour because: - it is the responsibility of the visa holder to maintain enrolment in a registered course of study at all times; the applicant was aware that this was a condition of his visa; the applicant was aware that his enrolment may be cancelled if he did not pay the course fee; his parents had provided him monies to meet the balance of the course fees; notwithstanding this he did not pay the balance of the course fees owing for his second semester but lent the monies to his then flatmate; the applicant was about 24 years of age and whilst it was his first time in Australia he was fully aware of and understood his visa obligations; the applicant did not notify Charles Sturt University of the difficulties he was experiencing; the applicant did not pay to the Charles Sturt University the sum of approximate $2,500 he had recovered from his flatmate and ask for an extension of time; and the applicant did not notify the Department of Immigration.

6. I do not accept that the circumstances that led to the applicant failing to pay the fees due to Charles Sturt University were due to circumstances that were beyond his control.  To the contrary, he had been provided with money from his parents to pay the balance of the fees due for the second semester and knowing his visa obligations he chose to advance or lend the monies to his then flatmate in circumstances where he was aware that his flatmate was having difficulties paying his fees.

• Past and present behaviour of the visa holder towards the Department

1. There is no information to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department.  There is no evidence the applicant has been uncooperative with the Department of Immigration.  I would expect that all visa holders to be co-operative with the Department of Immigration.  On the evaluative exercise I am required to undertake, I assess this factor as neutral.

• Whether there would be consequential cancellations under section 140

1. There are no dependent visa holders. The circumstances of this case are not such that any person’s visa would be consequentially cancelled under section 140 of the Act. Accordingly, this factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

• 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

1. If the Tribunal affirms the decision to cancel the applicant’s visa, the applicant will be an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart from Australia. Additionally, the applicant will be subject to section 48 of the Act which means that he will have limited options to apply for further visas in Australia. He will also be subject to public interest criterion 4013. I give this consideration no weight as these are the intended consequences of the legislation when a visa is cancelled under these grounds.

• Whether any international obligations, including non-refoulement and best interests of the children is a primary consideration, would be breached as a result of the cancellation

1. The circumstances of this case are not such that would engage Australia’s international obligations and the cancellation of the visa would not lead to a breach of Australia’s international obligations.  There is no evidence that the applicant has children.  There is no evidence that the applicant has applied for protection or made claims of being in need for protection.  There is no evidence or information before me that indicates that cancellation of the visa would be in contravention of the Convention against Torture.  In the circumstances I place no weight on this factor.

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

1. This factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled. 

• Any other relevant matters

1. At the conclusion of the hearing I asked the applicant whether there was anything further he wished to say in support of his application.  He said that if his visa is not cancelled his parents will pay for the college fees and he will seek re-enrolment in a course of study.  Because the applicant was at all times aware of the conditions of his visa, his parents had provided him with money to meet his course fees and knowing that the non-payment of course fees may lead to cancellation of his registered course of study and having been provided with money by his parents he decided to loan those monies to his flatmate who was in financial difficulties, on the evaluative exercise I am required to undertake I place no weight on this submission. 

Conclusion

1. Having regard to the evaluative exercise I am required to take and having regard to all of the evidence, I consider that the factors I have assessed against the applicant far outweigh the factors I have assessed in favour of the applicant and considering the circumstances of this case as a whole, the Tribunal concludes that the visa should be cancelled. 

DECISION

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

Peter Newton
Member