GANUGAPATA (Migration)

[2019] AATA 6176

GANUGAPATA (Migration) [2019] AATA 6176 (5 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Srikar Raj GANUGAPATA

CASE NUMBER:  1806357

HOME AFFAIRS REFERENCE(S):          BCC2017/3720714

MEMBER:L. Symons

DATE:5 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 December 2019 at 10:13am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – non-payment of fees – poor record as student – death of relative – remained employed – currently enrolled – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116, 189, 198, 359AA
Migration Regulations 1994 (Cth), Schedule 8, Visa Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 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 did not maintain his enrolment in a registered course in breach of condition 8202(2) of his Student visa. On 9 March 2018, he applied to the Tribunal for a review of that decision.

3. The applicant appeared before the Tribunal on 26 November 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

5. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. 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 AND FINDINGS

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 breach 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 was granted a Student visa on 13 May 2016. This visa was subject to a number of conditions including condition 8202. On 5 December 2017, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled. He did not respond to the NOITCC. The delegate cancelled his Student visa on 7 March 2018 on the basis that he breached condition 8202(2) of his Student visa because he was not enrolled in a registered course since 19 July 2017.

9. The applicant has filed with the Tribunal a copy of the Decision Record dated 7 March 2018 from the Department of Immigration (the Department).  He has also provided the Tribunal with an Offer Letter from Wentworth Institute issued 19 July 2017, a Confirmation of Enrolment in relation to a Diploma of Business, a Confirmation of Enrolment in relation to a Master of Information and Communications, a statement from the Australian College of the Professions issued on 22 October 2019, the bio data page of his Indian passport issued [in] August 2015, a Statement of Attainment dated 22 October 2019 and a Death Certificate issued on 6 July 2017. Following the hearing, he provided a Confirmation of Enrolment in relation to a Master of Business and Project Management and email correspondence with the University of Western Sydney.

10. During the hearing, the applicant gave evidence that he agreed with the Department’s decision that he was not enrolled in a registered course from 19 July 2017 to 4 December 2017. He conceded that he had breached a condition of his Student visa and stated that he could not cope with his studies at that time.

11. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course between from 19 July 2017 to 4 December 2017 and accordingly has not complied with condition 8202(2)(a) of his Student visa.

    Consideration of the discretion to cancel the visa

12. Having found that the applicant has not complied with a condition of his Student 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’.

    Purpose of the applicant’s travel and stay in Australia. Did the applicant have a compelling         need to travel to or remain in Australia?

13. The applicant gave evidence to the Tribunal that the purpose for which he travelled to Australia was to complete a degree and return to India. When asked why he wants to remain in Australia, he responded that he wants to get a Graduate Diploma in Business Analytics.

14. The Department sent the applicant a NOITCC on 5 December 2017. The records of the Department of Education indicate that he then enrolled in a General English course from 11 December 2017 to 5 January 2018 which he completed. He then enrolled in a Diploma of Business from 15 January 2018 to 11 January 2019 and his enrolment in this course was cancelled. He then enrolled in a Diploma of Leadership and Management from 24 September 2018 to 23 March 2020 which he is currently studying. The only course he has completed in Australia is a General English course.

15. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that he had not fulfilled the purpose for which the Student visa was granted to him and that his Student visa should be cancelled. He responded that he did not have emotional stability at the time and could not make any decisions. He stated that he did not know that he had outstanding fees of $3,500.00. He then stated that he could not pay $3,500.00 in fees in the last term. He stated that after he received the NOITCC he found out that his enrolment was cancelled because of outstanding fees.

16. The applicant’s evidence to the Tribunal is that he has four subjects left to complete his Diploma of Leadership and Management. He stated that he then wants to do a Graduate Diploma in Business Analytics. He stated that after one semester he can transfer to a Master’s degree. He stated that he receives financial assistance from his family to enable him to study in Australia. When asked how he would be able to pay the fees for a Master’s degree when he had been previously unable to do so, he responded that he never had an issue about fees and it was about his emotional instability. He stated that he did not receive letters about his fees. This directly contradicts his earlier evidence. When the Tribunal pointed out to him that his enrolment was cancelled because of non-payment of fees and he should have received letters (from his education provider) about this, he responded that he was not able to check his emails. 

17. The applicant has provided to the Tribunal a Statement of Attainment dated 22 October 2019 and a statement from the Australian College of the Professions issued on 22 October 2019. The Statement of Attainment indicates that he has completed some of the subjects towards a Diploma of Leadership and Management. The statement from the Australian College of the Professions confirms that he is currently enrolled in a Diploma of Leadership and Management from 24 September 2019 to 23 March 2020 and that his course progress and attendance is satisfactory.

18. In view of the applicant’s poor record as a student in Australia and his inability to complete any course in Australia, other than a four weeks General English course, the Tribunal has no confidence that he has the ability to complete a Diploma, Graduate Diploma and a Master’s degree if he remains in Australia.

19. In any event, the Tribunal notes that the Student visa granted to the applicant had an expiry date of 7 March 2018. Even if his application to the Tribunal is successful, he would have to apply for another Student visa and satisfy the requirements for that visa if he were to remain in Australia. The Tribunal gives this consideration little weight in his favour.   

    The extent of compliance with visa conditions

20. The applicant was not enrolled in a registered course between 19 July 2017 and 4 December 2017. This is a substantial period of time during which he was in breach of condition 8202(2)(a) of his Student visa. The Tribunal does not accept his explanation for why he was not enrolled in a registered course during this period. (See below)

21. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his Student visa. The Tribunal does not give this consideration any weight in his favour.   

    Degree of hardship that may be caused

22. The applicant’s evidence is that the cancellation of his Student visa would scar him forever. He stated that his uncle encouraged him to come to Australia and study here. (This uncle died on 4 June 2017). He stated that this was the one thing his uncle asked that he could give him. He stated that it is a small thing he could give him back. He stated that he cannot explain. 

23. The applicant gave evidence that his mother is strict and has told him that if he starts something he needs to finish it. He stated that if he returns to India with a cancelled visa he would remain a failure in her eyes. He stated that it would affect his whole life.

24. The Tribunal accepts that the applicant would suffer psychological and emotional hardship if his Student visa is cancelled. The Tribunal accepts that it would also have a negative impact on his parents. The Tribunal gives this consideration some weight in his favour.   

    Circumstances in which the ground for cancellation arose

25. The applicant did not respond to the NOITCC. During the hearing, he gave evidence that he attended classes regularly and everything was fine until June 2017. He stated that one of his paternal uncles had a stroke and passed away on 4 June 2017. He stated that thereafter he could not concentrate on anything and was weak. He stated that he could not work or go anywhere. He stated that he wanted to return to India but could hear his uncle’s words “I trust you and know you can complete this.” He stated that these words held him back and he could not return to India.

26. The Tribunal asked the applicant what he did when he realised he could not study. He responded that after that he tried to return to his studies but could not. He stated that he was unable to make any decisions at this time. He stated that he just stayed at home. He then stated that he used to go out and roam the streets. He stated that his thoughts hurt him so much that he used to roam the streets until 3.00am or 4.00am. He stated that he could not tell his parents that he wanted to return to India. He stated that his parents sent him to Australia on his uncle’s assurance. He stated that he cannot return to India without completing his degree.

27. The Tribunal asked the applicant whether he informed the Department that he was unable to study and he responded no. He stated that he was in “no sense” and could not approach his College. He stated that his College sent him mail but he only checked his mail after he received the NOITCC. He stated that the College suggested that he see the Student Counsellor if he had a problem. He stated that he cannot express the feelings he had and shivers when he thinks about those [things]. He stated that he was stuck because he could not see his uncle or return to India or tell his parents. He stated that after August or September (2017) he tried to “regain” himself and he started searching for a course. He stated that he started meeting up with his friends and socialising with them. He stated that, with the help of his friends, he was able to “get back”.

28. Earlier in the hearing, the applicant gave evidence that he is currently working part time as a dispatch assistant in a warehouse. He stated that he started this job in March 2017. The Tribunal finds it implausible that he would have been able to continue working in his job as a dispatch assistant in a warehouse if he was so affected by his uncle’s death that he was unable to leave his house or, alternatively, roamed the streets until 3.00am or 4.00am, was unable to make decisions, was unable to check his emails, had [“no sense”] and was unable to socialise until August or September 2017.

29. When the Tribunal raised this as an issue with the applicant, he responded that he was unable to work and did not go to work. He then stated that he went to work “on and off”. He stated that he was unable to do general duties and had to “set my brain”. The Tribunal does not accept that he did not go to work during this period. The Tribunal is of the view that he would not have a job if he did not go to work for three or four months (or went to work on and off) particularly as he only started the job in March 2017.

30. The records of the Department of Education indicate that the applicant was enrolled in a Master of Information and Communication Technology from 18 July 2016 to 31 July 2018. His enrolment in this course was cancelled on 2 May 2017 for cessation of studies. He then enrolled in a Master of Business and Project Management from 23 February 2017 to 26 October 2018 and his enrolment in this course was cancelled on 19 July 2017 for non- payment of fees. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that the first enrolment was cancelled prior to his uncle’s death for cessation of studies. The second enrolment was cancelled after his uncle’s death for non-payment of fees and not because of non-attendance. The Tribunal noted that this evidence was not consistent with his evidence to the Tribunal.

31. The applicant responded that his enrolment at the University of Western Sydney was not cancelled. He stated that he sat the examinations and completed three subjects. He stated that he changed his course to a Master of Business and Project Management degree. He stated that there was no problem with his fees. He stated that at that time he was in “no sense”. He stated that his first Confirmation of Enrolment was not cancelled. He stated that they would have sent him an email. The Tribunal showed him the records from the Department of Education. He responded that he enrolled in a Master of Information and Communications in 2016 and did not cease to study.

32. The Tribunal gave the applicant further time after the hearing to provide additional evidence. Following the hearing, he provided a Confirmation of Enrolment in relation to a Master of Business and Project Management and email correspondence with the University of Western Sydney. The email correspondence indicates that his enrolment at the University of Western Sydney was cancelled on 2 May 2017. This is consistent with the records of the Department of Education and does not support the applicant’s evidence to the Tribunal.

33. [The] Tribunal does not accept his evidence in relation to the extent of the impact of his uncle’s death on him. The Tribunal is not satisfied that his uncle’s death had any bearing on why his enrolment was cancelled on 19 July 2017 for non-payment of fees. The Tribunal does not give this consideration any weight in his favour.

    Past and present behaviour of the applicant towards the Department

34. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department. The Tribunal gives this consideration some weight in his favour.   

    Whether there would be consequential cancellations under s.140 of the Act

35. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in his favour.

    Legal consequences of a decision to cancel the visa

36. If the applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. However, he may be eligible for a Bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalize his affairs in Australia before departing.

37. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation.

38. These are the intended consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa. The Tribunal gives this consideration little weight in his favour.   

    Australia’s international obligations

39. The Tribunal asked the applicant whether there was any reason why he could not return to India. He responded that he cannot return to India without a degree

40. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in his favour.

    Any other relevant matter

41. The Tribunal is not aware of any other relevant matter.

    CONCLUSION

42. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    L. Symons
    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.