Gangam (Migration)

[2020] AATA 48

Gangam (Migration) [2020] AATA 48 (8 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akash Gangam

CASE NUMBER:  1803259

HOME AFFAIRS REFERENCE(S):          BCC2017/4237884

MEMBER:Wendy Banfield

DATE:8 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 08 January 2020 at 5:49pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in course – enrolment cancelled – non-payment of fees – financial difficulties – lack of evidence provided – 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 2 February 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 had not complied with the terms of his Student visa which required him to maintain enrolment in a course of study. The applicant had been enrolled in a Master of Information Technology but that enrolment was cancelled on 31 May 2017 for non-payment of fees. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of India and is currently 26 years old. He came to Australia on 2 April 2016 as the holder of a Subclass 573 Student visa. The applicant was enrolled to study an English course and a Master of Information Technology. Since his arrival in Australia the applicant has not completed any courses of study after his enrolment in a Master’s degree was cancelled in May 2017.

4. The applicant appeared before the Tribunal on 29 October 2019 to give evidence and present arguments.

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 Department cancelled the applicant’s Student visa because he was not enrolled in a registered course from 31 May 2017 to 17 January 2018 when the Department issued a Notice of Intention to Consider Cancellation (NOICC).  In his evidence at the Tribunal hearing the applicant agreed he had not been enrolled during the relevant period and there were grounds to cancel his visa.

10. 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).

    Consideration of the discretion to cancel the visa

11. 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 Procedural Instruction ‘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

12. The applicant came to Australia on 2 April 2016 holding a Subclass 573 Student visa and was enrolled to study a Master’s programme. He had obtained a Bachelor degree in India before travelling to Australia to undertake post-graduate studies. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study. The Tribunal places some weight in the applicant’s favour in considering whether his visa should be cancelled.

13. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant gave oral evidence that he came to Australia to explore education in a different country and complete a Master’s degree. He said people in his hometown know he is studying in Australia and if he returns without a degree, he will not be able to face them. According to the applicant he wants to continue studying by taking a Diploma course because of the gap in his studies and follow it with a university degree. The applicant said he can start a business when he goes back to India.

14. The applicant declared he still wants to study in Australia although he plans to take a course at a lower level than the qualifications he already holds. He has not been clear about whether he would go on to study at the post-graduate level which is the reason his visa was granted. In addition, the applicant has not provided satisfactory evidence why he cannot undertake further studies in his home country. The Tribunal accepts the applicant may face some questions on his return to India regarding his failure to complete his studies but this does not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia. The Tribunal places neutral weight on this criterion.

    ·     the extent of compliance with visa conditions

15. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

16. During the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant stated he is not expecting his visa to be cancelled but if it were to be, he could not face his relatives in India. The applicant submitted a degree from Australia is valuable but he did not elaborate or provide specific information in this regard. The Tribunal accepts the applicant would suffer a degree of psychological or emotional hardship if his visa is cancelled. However, since the applicant advised he would prefer to resume his studies with a Diploma course and is only considering re-enrolling in a Master’s degree, the Tribunal is not satisfied the level of hardship would be such that his visa should not be cancelled.

17. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

18. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for approximately 8 months before his visa was cancelled. The applicant gave two reasons for this, his father passed away on 12 August 2016 and he faced financial difficulties due to demonetisation that occurred in India in November 2016. The applicant had provided evidence of a bank loan to support his studies and he claimed that after his father’s death, the loan process changed. He said because the banks were busy, they were not releasing funds for his studies and it took some time for his mother to transfer property to her name and sort out the loan.

19. The applicant provided evidence of his father’s death and the Tribunal accepts this would have had an impact on him emotionally. However, he continued to study after this occurred. The Tribunal notes the events said to have led to the applicant’s inability to continue his studies (his father’s death on 12 August 2016 and banknote demonetisation in India between 8 November and 30 December 2016) occurred nine months and five months respectively prior to May 2017 when his enrolment ceased.

20. The applicant claims it took an extended period of time for his finances to be sorted out in India following his father’s death and demonetisation. He gave evidence about his financial difficulties but has not provided independent evidence to support the claims. The Tribunal does not accept his bare assertions that it took until December 2017 when the applicant says his mother was able to transfer property and arrange a new loan. Even if there were financial difficulties, there is no evidence the applicant contacted the Department or sought to defer his studies at any time. The Student visa programme enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. It was not open to the applicant to remain in Australia holding a Student visa while failing to maintain enrolment or progress academically.

21. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study for 8 months, or seek a deferment of his studies during the period when he was not enrolled which was a breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

22. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

23. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

24. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

    ·     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

25. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

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

26. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

27. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

28. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

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

    DECISION

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

    Wendy Banfield
    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.