EEDULAKANTI (Migration)

Case [2020] AATA 1203

EEDULAKANTI (Migration) [2020] AATA 1203 (2 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SAINATH GOUD EEDULAKANTI

CASE NUMBER:  1827358

HOME AFFAIRS REFERENCE(S):          BCC2018/1600122

MEMBER:Melissa McAdam

DATE:2 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 02 April 2020 at 1:39pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – non-commencement and cancellation of registered course – pressure of study and moves to live with relative – enrolment at lower level after receiving notice of intention to consider cancellation of visa – intention to progress to original level – non-commencement of study – discretion to cancel visa – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), r 1.40A, Schedule 2, cll 573.231, 573.223(1A), Schedule 8, condition 8516

CASE

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision dated 12 September 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 of the Migration Act 1958 (the Act).

  2. The applicant was represented in relation to the review by his registered migration agent.

  3. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with a condition of his visa. That condition was condition 8516 which required the applicant to continue to be a person who would satisfy the primary criteria for the grant of 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.

    NOICC

  4. On 22 August 2018 the Department issued a Notice of Intention to Consider Cancellation of his Student Visa under s.116 (NOICC). In the NOICC the Department set out the following (in summary):

    On 14 July 2016 the applicant satisfied the primary criteria for a class TU-573 Higher Education Sector visa (‘student visa’).  The criteria for the grant of the visa required him  to meet subclause 573.231 or subclause 573.223(1A), among other criteria.

    According to the Provider Registration and International Student Management Systems  (PRISMS) it appeared the applicant was no longer enrolled in a bachelor’s degree or master’s degree course and he was not enrolled in a course of study that was a principle course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A.

    It appeared the applicant no longer satisfied either subclause 573.231 or 573.223(1A) and had not therefore complied with condition 8516.

    Response to NOICC

  5. On 28 August 2018 the applicant responded to the NOICC by submitting:

    -A written statement that he started studying a Master of Engineering (Engineering Management) at the University of South Australia on 18 July 2016. Soon after this he went to Melbourne because he had family there and…

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AGLC
EEDULAKANTI (Migration) [2020] AATA 1203
Case
[2020] AATA 1203
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against the cancellation of his Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The cancellation was based on the applicant's non-commencement and subsequent cancellation of his registered course of study. The applicant argued that he experienced pressure from his studies and moved to live with a relative, and that he subsequently enrolled in a lower-level course with the intention of progressing to his original level, though he did not commence this study.

The primary legal issue before the Tribunal was whether the discretion to cancel the applicant's visa should be exercised, given that the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) had been established. This required the Tribunal to consider various factors, including the purpose of the applicant's stay, his compliance with visa conditions, and the potential hardship he might face.

The Tribunal found that the applicant had made minimal effort to pursue his studies over the four years he had been in Australia, having left his initial Master's course shortly after arrival and attending only one day of classes. While acknowledging the applicant's stated desire to obtain a Master's degree and the potential stress of returning to India without one, the Tribunal weighed this against his lack of practical effort towards his studies. The Tribunal also noted that while the applicant had complied with other visa conditions, his failure to comply with Condition 8516, which relates to the ongoing purpose of the visa, was significant. Ultimately, the Tribunal concluded that the circumstances favoured the cancellation of the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant appeared before the Tribunal on 17 March 2020 to give evidence and present arguments. The applicant did not require an interpreter for the hearing. The following is a summary of the information he provided at the hearing:a.He cannot return to India because he needs to obtain a Masters degree. He was confused when he came to Australia. He attended class and felt that he could not understand it. He could not understand the English.b.He completed a Bachelor of Engineering in India but he could not understand the Engineering subjects in Australia because they were different here. In India he learned very well. The course was the same in Australia but he could not understand the English. He could not understand fluent English when he first came to Australia. He can now. His native language is Telugu. He did not do an IELTS test before coming to Australia.c.His Bachelor of Engineering course in India was presented in English. He obtained a 70% mark for the course. d.His father has been sick. His mother called the applicant last night and told him she was sick too. They both have fever. He submitted a letter from a hospital about his father’s illness. The Tribunal put to the applicant that the letter he submitted was from a poly clinic not a hospital, was dated in January this year, and recorded that the person had a ‘common cold’ with a question mark beside the word ‘influenza’. The applicant agreed it was from a clinic not a hospital. The Tribunal asked whether his father had been suffering from a fever since the date of the letter, 30 January 2020. The applicant replied no the fever went but has returned. e.The applicant has not told his parents about the situation with his visa and studies in Australia. They would not be able to bear the news.f.Since the applicant has arrived in Australia there have been times he has not been enrolled in a specified course here. He agrees the ground for cancellation exists. He had a CoE from the University of South Australia when he first arrived in Australia. He arrived and stayed in Adelaide for two days before going to live with his cousin in Melbourne. He did this because he did not know anyone in Adelaide and it was very cold there.g.While he was in Melbourne he received a call from the professor of his course at South Australia university telling him he would have to attend class at the university or his enrolment would be cancelled. He told the professor he did not feel good and did not know anyone in Adelaide and that he was living with family in Melbourne. The professor told him he would have to attend regularly from the following week. h.He travelled to Adelaide to see the professor. This was about two months after he arrived in Australia. He stayed in Adelaide for two days. He attended the professor’s class and then spoke to the professor. The applicant does not know which class he attended in Adelaide. It was the only class he attended. The professor said that the applicant’s CoE would be cancelled.i.About six months later the applicant saw an Education Consultant, ‘Study Path’, in Melbourne and asked the Consultant about obtaining a new CoE. This was in January 2017. He had a break for four months up until this time because he was trying to understand. The Tribunal asked him what he was trying to understand and he replied he was confused. The Tribunal asked him what he was confused about and he replied nothing. He learned he needed to study a masters.j.The applicant told the consultant at Study Path that he needed a university CoE. The consultant told him he needed to do an English course. The applicant took an English course at a small college in Melbourne. He submitted everything but did not take a certificate from them because they asked him for another $2500 to issue the certificate. He went back to the consultancy and told them he did not get a certificate. They said they did not know anything. He then went to another consultant to obtain a CoE for a Cookery course. He paid them $500 but did not obtain the CoE. The Consultant was a Punjabi man in Albion. The applicant cannot remember who he was or in which street his office was. The applicant did not return to ask the Consultant for his money or the CoE. k.The applicant’s cousin came to Sydney at this time and the applicant went to Sydney with him. This was in November. Before this the applicant did nothing, just the English course.l.After he came to Sydney the applicant obtained a CoE from the Richmond School of Business for a Diploma course. He thinks he did this in February 2019. He did not commence the course because three days later his Student visa was cancelled.m.He went to the Aussizz Group about the NOICC he received. They told him to explain everything and they would send the information to the department. n.He applied for a BVE on 16 November and received it on 22 November 2018. The Tribunal put to him that he had said he was studying at Richmond School until February 2019. He responded he made a mistake and it was until September 2018.o.After his visa was cancelled he did not study anymore. In February 2020 he obtained another CoE. He did not do anything else about his studies before that because he needed to work to pay the tuition fees.p.His parents are financially supporting his study in Australia. They paid his university fees and flight cost. Sometimes they give him money for his living expenses. His father works in business and his mother is a housewife. His father’s business goes up and down.q.The applicant started working in Australia in December 2018. Prior to this he did nothing but study English for three months. He did not return to India because he was feeling stressed. He felt stressed because he was not studying. He obtained a bridging visa. After his visa was cancelled he was feeling somewhat stressed. He was mentally disturbed because his visa was cancelled. He obtained a BVE and could not go to India. He was not allowed to travel on his BVE. The Tribunal put to him that he was able to travel to India despite holding a BVE, he simply could not then re-enter Australia. He responded he felt like he could not go to India.r.The applicant has not seen any doctors while he has been in Australia. He does not know why this is.s.The Tribunal put to the applicant that he was allowed to study on his BVE as there was no condition restricting study. He replied yes but he did not study. The Tribunal asked him if that was all he wanted to say on that point and he responded yes.t.The Tribunal asked the applicant what misleading information his agent had given him. He responded it was about the English course. He paid them $2500 and they asked him for another $2000. The Tribunal put to the applicant that he had earlier referred to paying the institution this money, not his agent. He responded yes he paid the education institution the money. His agent did not mislead him, the institution did.u.He first enrolled in Diploma and Advanced Diploma courses in September or October 2018. He did not complete the courses. He did not start the courses. He again enrolled in an advanced diploma in October 2019. He did not start that course. This was because when he obtained the CoE some friends at the same school told him it was a “black-listed” school, or a “fake college”. He learned it was a fake college in 2019. It was not a fake college. He went to see a professor at the college who said it was not fake. He does not know why his friends had told him it was a fake college. When they told him this he immediately went to the college to see the professor who told him the college was not fake. After the professor told him it was not fake the applicant thought it might be fake so he would take a course in another place. He did not do anything.v.In February this year he went to the same college, Richmond College in Parramatta. w.The Tribunal put to the applicant that the course start date was recorded as 24 February 2020 but the CoE form he had submitted stated it was created on 5 March 2020. The applicant responded that he did not know why this was so. x.The Tribunal asked the applicant what he was enrolled in at Richmond College. He responded it is an Advanced Diploma of Leadership of [sic] Management. The Tribunal asked the applicant what the course was about. He responded it was a course for business. The Tribunal asked the applicant if he could say anything more about the course. He responded that he has to learn how business is to be run and how to maintain and develop the business.y.The Tribunal asked the applicant what subjects were in the course. He responded that he had no idea. The Tribunal asked him had he started the course. He responded that he had started but he doesn’t have any idea of the subjects.z.The Tribunal asked the applicant what he had done in the course. He responded that in one month, he had not done anything. He thought he would start attending the course after his Tribunal hearing. In his mind he thought about the hearing.aa.Study is important to him. When he completes a course in Australia he can get a good job in India. He has a Bachelor of Engineering in India and he can get a good job there with his Bachelor degree. He could get a job such as a Supervisor in a major showroom with the Bachelor degree. This is a good job.bb.The Tribunal put to the applicant that his Student visa was due to expire in September 2018, so what are his plans if the cancellation is set aside. He responded that he will apply for another student visa and start a masters’ degree. He will go to an education consultant to obtain a CoE in Engineering Management Masters.cc.He does not want to return to India because he needs to complete his masters. He has not done anything the past four years. Now he knows a lot and he can get a good job. His parents’ aim for him is that he does his masters. It will take him two years but he hopes to obtain it in one year. His cousin is now in America and will send him money for his studies.dd.He works at the grounds of Alexandria as wait staff.ee.He has complied with his other visa conditions.ff.His parents will feel he is so stressed if his visa remains cancelled. He has depression and stress and needs to complete a masters. He can’t go back to India because he needs to do something with himself.gg.If he can’t get another visa, maybe he will go back to India. He will feel stressed if his visa remains cancelled and he will miss Australia. He will explain what happened to his parents and see what suggestions they will give him. He will convince them that he did not study, tell them everything and will search for a good job. hh.He feels he has been going down. His friends completed masters so why did it happen to him that he did not? His visa was cancelled and his Bridging visa had no travel. He has learned a lot. He has learned that if he doesn’t study his visa will be cancelled. He realises a lot now. He realises what he did on the past. Now he knows he will get a good life and be successful in life if he does his masters in Australia. His parents will be happy.ii.He needs to study in Australia and he needs to go back to India. He will do a masters and go back to India. He can show his parents he completed a certificate.jj.He started learning, taking CoEs, and learning. He thought he would study but his visa was cancelled. He again thought he would study but he got a BVE and could not travel, so he felt disturbed.CONSIDERATION OF CLAIMS AND EVIDENCE

Decision

Reasons for decision

On 28 August 2018 the applicant responded to the NOICC by submitting:-A written statement that he started studying a Master of Engineering (Engineering Management) at the University of South Australia on 18 July 2016. Soon after this he went to Melbourne because he had family there and it was extremely difficult to cope with the pressures of study. He sought another education provider and decided to pursue his studies in Melbourne. He was advised to enrol in an English course and a master program in the next available intake. He received letters of offer from Charles Sturt university for a Masters in Information Technology and a Masters in Networking from Melbourne Institute of Technology. He enrolled in an English course but due to misleading information from his agent he did not receive any certificate or get a CoE for any Masters course. He came to Sydney in 2017 because his relatives moved to Sydney. He is enrolled in a Diploma and Advanced Diploma in Leadership and Management which is due to finish on 2 April 2021. He realised that a Masters program is above his level of capability so he has decided to start with a basic level of studies before pursing higher education. His visa expires on 20 September 2018 and he wishes to extend his visa. He wants to finish his study before going back home so he is better equipped for the job market in India.-A Confirmation of Enrolment (CoE) from Southern Cross School of Business for a Diploma of Leadership and Management, Course Sector: VET, to start 28 August 2018 and finish 23 August 2019. The document was created on 15 August 2018.-A Confirmation of Enrolment (CoE) from Southern Cross School of Business for an Advanced Diploma of Leadership and Management, Course Sector: VET, to start 7 October 2019 and finish 2 April 2021. The document was created on 15 August 2018.Delegate’s Decision On 12 September 2018 the Department Delegate decided to cancel the applicant’s visa. The decision record states that on 21 April 2017 the University of South Australia notified the Department that the applicant had ceased studies and was no longer enrolled. On 16 December 2017 the applicant completed a Certificate IV in EAL with IIA. PRISMS indicates he is enrolled in a CRICOS registered course of study. On 15 August 2016 Southern Cross School of Business created new CoEs for the applicant in a Diploma and Advanced Diploma in Leadership and Management. The delegate was satisfied the ground for cancelation existed.Information to the Tribunal On 16 March 2020 the applicant submitted the following information:-A Confirmation of Enrolment (CoE) from Richmond School of Business for a Diploma of Leadership and Management, to start 24 February 2020 and finish 21 February 2021. The document has a creation date of 5 March 2020.-A Confirmation of Enrolment (CoE) from Richmond School of Business for an Advanced Diploma of Leadership and Management, to start 12 April 2021 and finish 9 October 2022. The document has a creation date of 5 March 2020.-Doctor’s notes on ‘Sai Ram Poly Clinic’ letterhead from Dr P Chakravarthy, for ‘Vikram Go..’, dated 31 January 2020 detailing complaints of ‘cold .. productive cough, fever on and off, hoarness / throat pain’ with other words which are not legible; and ‘examination’ notes of ‘viral pyrenia, common cold, ? influenza’.-Another copy of the letter he submitted to the Department in his response to the NOICC.

Ratio Decidendi

Legal Principle Established

The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(b) 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 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’.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 The applicant came to Australia in mid-2016 to study and to obtain a Master’s degree. The evidence presented by the applicant shows that he has made very little effort over the four years he has been in Australia to pursue studies or obtain a higher degree. He left the city in which his Masters course was located within just a couple of days of his arrival in Australia and did not attend or commence studies in the course, apart from one day. He has studied and finished a several month English language course in Australia. This is the extent of his academic achievement to date here. In the Tribunal’s view the applicant has not actively pursued the purpose of his travel to and stay in Australia to any reasonable degree. He has not put forward any other purpose or need to remain in Australia. The Tribunal therefore views this factor as favouring the cancelation of the applicant’s visa.The extent of compliance with visa conditions There is no indication that the applicant has not complied with his other visa conditions. However the breach of Condition 8516 is a significant one, going to the reason for the grant of the visa and the ongoing purpose for the visa. The Tribunal views the applicant’s lack of compliance with Condition 8516 as a factor which favours the cancellation of his visa.The degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant stated that he will be stressed and disadvantaged in the Indian job market if his visa remains cancelled and he cannot obtain a Masters’ degree in Australia. He also stated that his parents’ ambitions for him will be disappointed. The Tribunal accepts that the applicant will experience some stress and emotional distress at returning to India without completing his goal of obtaining a Masters’ degree in Australia. However his lack of efforts to apply himself to study in Australia does not reflect an attachment of importance to obtaining a Masters’ degree in more than any notional sense. The applicant’s behaviour in Australia does not indicate that he considers obtaining a Masters’ degree warrants actual and practical effort. The Tribunal therefore considers that the level of stress and emotional distress he may experience will be of a lesser degree.