DEVARAKONDA (Migration)

[2019] AATA 3655

DEVARAKONDA (Migration) [2019] AATA 3655 (28 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SAPTHA RUSHI DEVARAKONDA

CASE NUMBER:  1729410

HOME AFFAIRS REFERENCE(S):           BCC2017/2968144

MEMBER:Joseph Lindsay

DATE:28 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 28 May 2019 at 10:16am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased studies – change to Vocational courses – non-payment of course fees – unlawful residence in Australia – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Conditions 8202, 8531

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) 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 failed to remain in a registered course of study and breached condition 8202(2)(a) of his student 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 attended the hearing before the Tribunal on 4 April 2019. The applicant had an agent but the agent did not attend the hearing. The applicant spoke English well and only very seldom sought the assistance of an interpreter.

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. In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department of Immigration and Border Protection dated 17 November 2017 indicating that he had not been enrolled in a registered course of study since 9 February 2017. In his response to the Tribunal, the applicant agreed that he had not been enrolled in a registered course of study since 9 February 2017.

9. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

10. The Tribunal also spoke to the applicant about information before the Tribunal that he was not on a Bridging Visa E and that he had been unlawful since his student visa was cancelled on 17 November 2017 – nearly 18 months ago - and that this circumstance may cause the Tribunal to find that the applicant also breached condition 8531 of Schedule 8 to the Regulations (the holder must not remain in Australia after the end of the period of stay permitted by the visa). The Tribunal put this information to the applicant in accordance with s.359AA of the Act. The applicant did not want an adjournment or additional time in which to respond.

11. The Tribunal asked the applicant why he did not have a Bridging Visa E and he indicated that he did not know why he did not have a Bridging Visa E. The applicant indicated he knew what a Bridging Visa E was, but at the time his student visa was cancelled he had no idea about the Bridging Visa E. He indicated that he went to his agent who told him to go to the Tribunal.

12. When the Tribunal asked the applicant if he had checked Visa Entitlement Verification Online (VEVO) himself to see if he had a Bridging Visa E, he indicated that he knew what VEVO was but he had not logged on to VEVO to check his visa status.

13. Accordingly, the Tribunal finds that the applicant has been unlawful since the delegate cancelled his student visa on 17 November 2017 – nearly 18 months ago – and in these circumstance the Tribunal finds that the applicant breached condition 8531 of Schedule 8 to the Regulations (the holder must not remain in Australia after the end of the period of stay permitted by the visa). The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with conditions 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’.

    Student history, PRISMS record and the circumstances in which the ground for cancellation arose

15. The Tribunal asked the applicant about his student history. In response, the applicant indicated that since he had been in Australia he had enrolled in a Master of Data Science, and then changed his enrolment to another master’s degree, and then finally he enrolled in a diploma leading to a Bachelor of Management.

16. The Tribunal considered the applicant’s Provider Registration and International Student Management System (PRISMS) record and indicated to the applicant that what he had told the Tribunal about his student history appeared to be true in respect to his student enrolment history.

17. The applicant then indicated that he stopped studying because he had problems with his girlfriend but did not tell either his course provider or the Department about the problems he was experiencing. He indicated that he and his girlfriend had come from Hyderabad and that she was in the United States at the time the problems happened.

18. However, the PRISMS record indicated that the reason why the applicant had stopped studying on 9 February 2017 was because his provider cancelled his course enrolment when he did not pay his course fees. The Tribunal put this information to the applicant in accordance with s.359AA of the Act. The applicant did not want an adjournment or additional time in which to respond. In response, the applicant indicated that it was true he did not pay his course fees also, but that the reason why he did not pay his course fees was due to the problems he experienced as a result of the difficulties he had with his girlfriend.

19. The Tribunal put to the applicant that as the holder of a student visa, the Tribunal would have expected that he would have been reasonably aware that he had to abide by his visa conditions and that he would have taken reasonable steps to contact his course provider and the Department about his problems. The applicant indicated in response that he was low and sometimes depressed, although he had never been diagnosed with depression or anxiety or ever received treatment for depression or anxiety.

20. The Tribunal put to the applicant that as the holder of a student visa, the Tribunal would have expected that he would have been reasonably aware that he had given a financial guarantee that he could pay his course fees. In response, the applicant confirmed that he knew that he had given a financial guarantee. He indicated that he had no financial problems because his family back in India were financially well-off.

21. The Tribunal asked the applicant why he did not respond to the Notice of Intention to Consider Cancellation (NOICC) from the Department. In response, he indicated that he did respond but he responded just after the five days he was given to provide the response. He indicated that shortly after, about one or two days, the Department made the decision to cancel his visa. However, the Tribunal put to the applicant that the NOICC on the Department file was dated 3 October 2017 but that the decision was not made until 17 November 2017 – much more than the one or two days he indicated. The Tribunal put this information to the applicant in accordance with s.359AA of the Act. The applicant did not want an adjournment or additional time in which to respond.

22. In response, the applicant indicated he was telling the truth but that at the time he was going through a bad situation. He said he came from an educated background and had one brother who went to New Zealand to study who was now a permanent resident there. He indicated that he could not respond in time, and by the time the visa was cancelled it was too late. He indicated however that he did send some emails to the Department. The Tribunal asked the applicant whether there was anything he told the Department that he wished to raise with the Tribunal, and in response he said ‘no.’

23. In considering the above, the Tribunal finds that the reason why the applicant allowed his course enrolment to cease was because he experienced problems with his girlfriend. The Tribunal finds that during this time, early 2017, the applicant did not pay his course fees and as a result his course provider cancelled his course enrolment. The Tribunal places low weight on the applicant’s claim that he was low and depressed because the applicant has never been diagnosed with depression or anxiety or ever received treatment for depression or anxiety. The Tribunal finds that the applicant’s lack of action and his failure to raise these issues with either his course provider or the Department was not reasonable in the circumstances.

24. The Tribunal finds that the applicant’s claimed circumstances as to why he did not remain enrolled are not exceptional circumstances. The Tribunal finds that the applicant, as he admitted, did not take reasonable steps to manage his personal circumstances when he found that he experienced personal issues and he did not contact his course provider or the Department to notify them of his circumstances.

25. The Tribunal gives low weight to the applicant’s circumstances as to why he did not maintain his course enrolment.

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

26. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

27. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202 and condition 8531. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

28. In response to this issue at the hearing, the applicant indicated that if his visa was cancelled he would suffer no financial hardship because his family were financially well-off, but that he would experience disappointment from his family because he was not successful in his studies.

29. The Tribunal accepts that the applicant may incur some hardship in respect to disappointment from his family. The Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

30. There is no evidence that the applicant has been uncooperative with the Department in the past. In reference to the circumstances indicated above where the applicant has apparently been unlawful for the last approximately 18 months, there is no indication he had intended to do this. Having taken this into consideration, the Tribunal gives this consideration low weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

31. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his student visa. The Tribunal places low weight on this information in the applicant’s favour.

    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

32. At the hearing, the applicant indicated that he was not aware of the legal consequences of the cancellation of his student visa, in particular that when his student visa was cancelled he needed a visa to remain in Australia lawfully – which he did not have as at the time of the hearing.

33. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

34. The Tribunal places low weight on this information in the applicant’s favour.

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

35. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The applicant expressly stated that he did not have any fear of anything at all if he returned to India in the reasonably foreseeable future.

36. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

37. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated that there were no other relevant matters he wanted the Tribunal to be aware of.

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

    Conclusion

39. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 12 October 2016, now approximately two and a half years ago, the applicant has not completed any higher education courses.

40. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 9 February 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

41. The Tribunal finds that the circumstances that led the applicant to not the applicant not being enrolled in a registered course of study since 9 February 2017, as detailed above, are not exceptional circumstances.

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

    DECISION

43. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Joseph Lindsay
    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.