Dayapally (Migration)

[2019] AATA 1714

Dayapally (Migration) [2019] AATA 1714 (28 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sai Sumanth Reddy Dayapally

CASE NUMBER:  1807895

HOME AFFAIRS REFERENCE(S):           BCC2017/4259961

MEMBER:Brendan Darcy

DATE:28 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 28 May 2019 at 4:09pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – genuine student – substantial period of non-compliance – unsubstantiated reasons for non-payment of tuition fees – 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 13 March 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 applicant was not compliant with condition 8202 and that the grounds for the visa’s cancellation outweighed the grounds not to cancel the visa. 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, a citizen of the Republic of India, appeared before the Tribunal on 20 May 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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?

7. 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).

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

9. The delegate’s decision record outlining the reasons for the visa’s cancellation was submitted to the Tribunal as part of this review application. It indicated the applicant had been granted a Subclass 573 Higher Education Sector student visa on 6 November 2015 and the stay period of the visa was extended up to and including 13 March 2018. It also indicates that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was enrolled in a registered course of study from 26 May 2017.

10. During the hearing, the applicant explained that he enrolled in a Master of Information Technology at the Charles Sturt University (CSU) at its Melbourne campus. 

11. The Department validly issued a Notice of Intention to Consider Cancellation letter on 19 January 2017; and to respond to it in writing within five (5) working days. However the applicant did not respond to the NOICC at all.

12. A delegate on the Minister’s behalf proceeded to cancel the student visa on 13 March 2018. On 22 March 2018, the applicant applied to have the delegate’s cancellation decision reviewed by the Tribunal with the decision record attached.

13. During the scheduled hearing on 13 May 2019, the applicant did not dispute that that he had not been compliant with condition 8202.

14. Curiously, the applicant provided a statement on 27 May 2019 in which he claimed the grounds for cancellation did not exist. However, in reading the statement, the applicant states that he was not able to continue his enrolment from 26 May 2017 due to extenuating circumstances.

15. Based on the available evidence, the Tribunal finds that the applicant had not been enrolled in a registered course of study commensurate with her Subclass 573 visas between 26 May 2017 and the date of cancellation on 18 April 2018 – a period of over ten (10) months.

16. Accordingly, on the evidence before the Tribunal, the applicant has not complied with condition 8202(2). 

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

17. 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’.

18. The applicant was provided with a post hearing opportunity to support his case that his visa should not be cancelled and to do so by 27 May 2019. On 27 May 2019, the Tribunal received a statement reiterating the reasons presented to the Tribunal at the scheduled hearing when considering its discretionary powers.

19. Attached to the statement were a number of ‘payment received’ from the applicant’s education provider, CSU, dated 15 October 2015; another one dated 5 August 2016; and third one without any date. 

20. Also attached was an email dated 22 May 2019 stating that the education provide was unable to issue the applicant with a progress letter and that the applicant must clear outstanding fees to obtain a transcript.

    The purpose of the visa holder’s travel to and stay in Australia

21. The fact remains that the purpose of this visa under review is for full time study in a Bachelor or Master’s degree and that applicant’s enrolment in an enrolled course for higher education was over a ten month period.

22. During the hearing, the applicant stated he completed a Bachelor in Computer Science and Engineering in Hyderabad back in India and spent two years as an associate engineer in India. He decided to travel to Australia to complete a Master’s degree so to enhance his capacity to move beyond being an associate engineer. He claimed completing a degree in Australia was more valuable in the Indian labour market. 

23. He further explained that he completed three semesters out of his Master’s degree but encountered difficulties leading to his non-enrolment which prevented him from completing the studies. This is discussed below.

24. In his written post hearing submission, the applicant wrote:

    I have completed my Bachelor of technology Computer Science & Engineering in July 2013 and worked as an ‘Associate Software Engineer’ with ‘Treesoft Solutions’ India, from 09 September 2013 to 18 October 2014. I wanted to get a better role and become a senior software Engineer, so I decided to do my master’s program in Information technology from an Australian institution. I have completed more than half of my course successfully, I am just left with one semester to complete my course, go back to India and get my desired role in IT. These studies in Australia will enhance my IT skills and give weightage to my acquired knowledge and experience.

25. On balance and with no evidence to the contrary, the applicant has sufficiently demonstrated to the Tribunal that he is genuinely motivated to complete a Master’s degree and that was the purpose of him travelling to Australia was full time study.  Accordingly, the Tribunal gives these considerations significant weight in favour of the visa not being cancelled.

    The extent of compliance with visa conditions

26. During the scheduled hearing, the applicant claimed that he had not breached any further conditions on his visa and that his family continued to support him financially while he has not been studying. There is no strong evidence that the applicant has not been non-complaint with the other conditions imposed on him as a visa holder.  It places some weight on this in favour of the applicant.

27. Nonetheless the applicant has not been compliance with condition 8202 for more than ten months. This is assessed by the Tribunal to be a substantial amount of time. Furthermore there is no evidence the applicant has sought any deferment or attempted to meaningfully mitigate the non-compliance at all and it is the applicant’s responsibilities to address these difficulties with his education provider, should they arise, or to seek alternative ways of remaining compliant. The Tribunal gives this factor substantial weight towards the visa being cancelled.

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

28. During the scheduled hearing, the applicant if he is not able to complete a Master’s in Australia will be adversely affect his capacity to find a good paying career in India and it will cause disappointment in him and among his family members as higher education is much valued by them. He also said that his parents were aware of the difficulties he was facing with the cancellation of his student visa. As discussed in the hearing, the applicant’s parents appear to be understanding and that the disappointment he might encounter will not be great. The Tribunal finds that the applicant will not face a severe, considerable or even a notable degree of emotional disappointment or any significant barriers to continuing his Master’s degree in India, if this visa remains cancelled.

29. In his post hearing submission, the applicant claimed that his parents have invested nearly two million Indian rupees into his education in Australia. If he returns to India without furthering his skills, his family will be in dire financial hardship as they had to repay for his education loan and he might be able to support them financially.  The Tribunal notes that the applicant did not mention anything about a loan for his education in Australia during the hearing. In any case, the applicant and his family will be required to pay instalments to any amount they borrowed in the past, whether the visa is cancelled or not. While the Tribunal accepts there is not a notional return of the loan and it may be more challenging to repay such a loan, the Tribunal assesses that the financial hardship not to be severe or significant. In this regard, the Tribunal places on a small amount of weight towards the visa not being cancelled.

30. Although it is accepted the applicant (and his family) will experience some disappointment and emotional hardship, as well as some financial challenges, in this visa remaining cancelled, given the applicant can continue studies in India and has a Bachelor degree from his home country, it is not assessed by the Tribunal to be severe or significant or even notable in degree. When cumulatively considering these hardships, the Tribunal gives them some weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

31. During the scheduled hearing, the applicant elaborated on the circumstances leading to his non-payment of tuition fees which led to his Master’s degree being cancelled. He explained that he paid for the first three semesters of his Master’s degree, including by instalment, but encountered administrative difficulties in paying for the fourth semester.  The applicant claimed that education provider had not received the payments that he made arrangement to be paid. He further claimed that he made several efforts to resolve the situation but the education provider would not accept his payments by having them forwarded by instalment. The Tribunal expressed its doubts that the education provider would not accept payment from a fee paying international students, including by instalment in the same manner as the based on an earlier arrangement. The Tribunal asked if he made any alternative arrangements with another education provider; to which the applicant the responded that he wanted to complete his studies with this particular provider.

32. However the applicant had no financial statements or receipts to support this, although he was provided with a post hearing opportunity to do so, and it also asked for a transcript of completed semesters.

33. In the applicant’s post hearing submission, he wrote:

    I was granted my student visa (sub class 573) on 06 November 2015, which was to be expired on 15 March 2018. I came to study Master of information Technology from Charles Sturt University and completed my first semester from November 2015 to February 2016. Then I continued my second semester from March 2016 to June 2016 and successfully completed it In the third semester i.e. from July 2016 to October 2016 I got my fees from India and the University allowed me to pay the fees in installments. I have completed my third semester as well. Then there was a summer break from November 2016 to February 2017 and the course commenced from March 2017. As I paid my fees in installments in the previous semester, I was under the impression that I can do the same this semester as well. I enrolled into the subjects as well. Unfortunately, Charles Sturt University did not give me the privilege to pay the fees in installments this semester. They asked me to pay in full amount then, which I could not do and my student account locked. Since I did not have access to my student account, I could not even take the transcripts for my previous studies and the University refused to provide them as I did not pay the full amount of fees. I tried to negotiate with them and appealed to give my previous transcripts so that I can enroll in another institution, but they were very pedantic and cancelled my enrolment. This got me into trouble as I was stuck with my progress and could not get my transcripts to enroll elsewhere. Eventually I was stressed with this situation and was trying my best to resolve the matter however the department cancelled my visa which made the matters worse.

    Kindly, see the attached documents – Fees receipts which I have paid in full amount and in installments to Charles Sturt University.

34. The Tribunal has examined the evidence and considered the statement. The submitted evidence does not support the applicant’s claim that it did not accept payments in the fourth semesters and it cannot rely on the submitted payment received with no date on it. Furthermore, the email dated 22 May 2019, indicates that the education provider was open to receiving tuition fees for outstanding fees after his enrolment was cancelled. As this was the case, then the applicant has failed to demonstrate to the Tribunal that the education provider refused payments by instalment or by any other method. As discussed in the hearing, the applicant’s non-payment of fees for the reasons claimed has been not a credible or convincing account. For these reasons, the Tribunal does not accept the applicant’s weakly argued and unsubstantiated reasons for the non-payment of his tuition fees which led to the cancellation of his enrolment, which in turn, led to the cancellation of the visa.

35. Furthermore, the applicant has not demonstrated that he made his best efforts to negotiate with the education provider or find alternative to mitigate his non-compliance with condition 8202 by enrolling another institution.

36. Noting that the applicant does not claim any severe psychological or familial reasons for his non-compliance with condition 8202 as extenuating circumstances, the Tribunal finds that the applicant did not have any extenuating or exceptional circumstances, claimed or otherwise, beyond his control that led to the grounds for the cancellation of this student visa under review.

37. Accordingly, the Tribunal gives the applicant’s claimed circumstances no weight towards this student visa under review in not being cancelled or that he has taken seriously the conditions imposed on him as a student visa holder.

    Past and present conduct of the visa holder towards the Department

38. The applicant did not respond to the invitation to respond to the validly issued NOICC, despite requesting for an extension of time. The applicant claimed that he wanted to see the Department face-to-face. The Tribunal said the NOICC clearly states he is required to respond in writing and that would be reasonable in his circumstances as he is a Master’s student with a reasonable level of proficiency in English. The Tribunal gives this lack of responsiveness towards the Department some little weight in favour of the visa remaining cancelled.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

39. Not relevant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

40. During the scheduled hearing, the Tribunal discussed the effect of section 48 of the Act if the cancellation of the applicant’s visa were to proceed. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia, arising from the operation of section 48 in limiting the applicant in applying for other visas and may have to depart or be detained.

41. The applicant stated that he will seek judicial review to reinstate his visa as he would rather stay in Australia that way. It was explained to the applicant that the courts did not have the power to reinstate this visa. If he were successful, the cancelled visa decision would be reviewed by the Tribunal for a second time. The Tribunal enquired if the applicant feared he had wasted a lot of time in not completing his Master’s degree would he not fear more lost time by not returning to India to complete his studies. The applicant responded that he had not thought about that but he was thinking about appealing as it was informed that it was a migration option for him.  

42. In his post hearing submission, the applicant claimed that he will be wasting more than four years of time in Australia and leave to my country without acquiring any further skills and degree without fulfilling his dreams in acquiring a Master’s degree.

43. In having regard to the above, the applicant has failed to demonstrate any notable or significant hardship arising from the mandatory legal consequences arising from this visa being cancelled. Accordingly the Tribunal gives these considerations little weight towards the visa not remaining cancelled.

    Whether there would be consequential cancellations under s.140

44. As the applicant has no dependants, there is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

45. No claim during the schedule hearing was advanced that the applicant has any fears from the government or some other actor if he were to return to the Republic of India. It is noted the applicant claimed he might be depressed if he returned but he has never seen a doctor regarding any psychological problems. Noting the applicant has not applied for a protection visa, there is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Any other relevant considerations

1. There are no further relevant considerations in this review application.

   Conclusion

2. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

3. Overall the applicant has failed to provide any credible or substantiated extenuating circumstances beyond the applicant’s control that led to the cancellation of the visa or any notable or significant degree of hardship to be faced if the visa remains cancelled. While the Tribunal finds the applicant to be a genuine student, the fact remains he was substantially non-compliant with condition 8202 which is a very serious matter. In this regard, the Tribunal has concluded that the applicants have not taken seriously Australia’s migration laws and regulations and it has placed much emphasis on this finding.

4. In this decision, a range of unfavourable factors, cumulatively considered, are found to have notably outweighed those countervailing favourable factors towards not cancelling the applicant’s student visa.

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

   DECISION

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

   Brendan Darcy
   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.