Garae (Migration)

[2020] AATA 6047

Garae (Migration) [2020] AATA 6047 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lakshman Garae

CASE NUMBER:  1818458

HOME AFFAIRS REFERENCE(S):          BCC2018/1037255

MEMBER:Donna Petrovich

DATE:11 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 11 March 2021 at 1:11pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – non-payment of fees and insufficient course progress – physical illness not notified to education provider and no treatment sought – discretion to cancel visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 June 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 has not been enrolled in a registered course of study since 11 September 2017. 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 appeared before the Tribunal on 24 July 2019 to give evidence and present arguments. The applicant was represented in relation to the review.

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. As noted in the Department decision record, based on evidence available to the Department in the Provider Registration and International Student Management System (PRISMS), the Department of Education’s register for overseas students, it appeared that the applicant had not been enrolled in a registered course of study since 11 September 2017. The applicant initially commenced study in a Masters of Information Technology at Deakin University at Burwood in Melbourne and was enrolled from July 2016 until November 2016, but he was unable to continue as his enrolment was cancelled due to unpaid student fees and, as provided by the applicant at the hearing, he did not submit insufficient work and failed to sit the exam required. 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

9. 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

10. The applicant told the Tribunal at the hearing on 24 July 2019 that he had come to Australia to enrol and complete a Masters of Information Technology at Deakin University, which he commenced in July 2016, but did not complete, as the University cancelled his enrolment.  The applicant has been unable to gain enrolment in another course and has not studied since the cancellation of his enrolment on 11 September 2017.  In considering this, the Tribunal concludes that the applicant’s intention may initially have been to study, but he has been unable to fulfill this intention. Therefore, the applicant no longer has a compelling need to travel or stay in Australia.  Accordingly, the Tribunal gives no weight in favour of the applicant’s statement that the purpose of his travel and stay in Australia was to study.

    The extent of compliance with visa conditions

11. The applicant was not enrolled in a registered course from 11 September 2017 until 14 June 2018.  He has remained in Australia without having complied with the conditions of his visa for a period of almost nine months.  The Tribunal considers the period of non-compliance to be significant.

12. The Tribunal considers that the applicant’s non-compliance is significant and as such gives little weight to the applicant when considering this factor.

    The degree of hardship that may be caused to the applicant

13. The applicant provided evidence that he had completed a Bachelor of Commerce in India and wished to complete a Masters in Information Technology in Australia. The applicant told the Tribunal that he had looked at doing a similar course in India but could not find anything as good as in Australia. His evidence was that if unable to complete his Masters, then he would be prevented from advancing his employment opportunities in India.

14. The Tribunal accepts that by not completing his Masters of Information Technology the applicant may be restricted from obtaining a better position in the event of his return to India.  However, the applicant has already completed a Bachelor of Commerce in his home country in India and may be able to resume further studies on his return, which will improve his situation.

15. The Tribunal notes that, in the event that the applicant’s visa is cancelled, under s.48 of the Act he may have limited options available to him if applying for a further visa in Australia.  In addition, he will be subject to Public Interest /Criterion 4013 which means that he may not be granted a temporary visa for three years from the date of cancellation.

16. The Tribunal acknowledges that if the applicant’s visa is cancelled he will suffer some hardship by having to return to India without a Masters of Information Technology, and as such has given some weight to the hardship the applicant may suffer in the event that his visa is cancelled.

    The circumstances in which the grounds for cancellation arose

17. The applicant conceded to the Tribunal that there were grounds for cancellation of his visa, but he said that this was as a result of an un-explained illness, which prevented him from attending University. The applicant told the Tribunal in evidence at the hearing that he had developed a swelling of his foot and lower leg, which prevented him from attending University for 20 days. The applicant did not notify the University of his illness, nor did he ask for a deferment of his course at the time. The applicant did not seek medical assistance and felt that the injury had occurred during standing up for long periods in his travel by public transport to University.

18. The applicant also told the Tribunal that he did not use the time away from University to catch up on work that he was behind in and that he missed his final exam as a result of his absence.  The Tribunal asked if he had asked to sit a supplementary exam, but he said it was too late by then as the course had ended, he didn’t complete assignments, and he had missed the exam. He told the Tribunal that he had unpaid fees and that he did not contact them after that.

19. He told the Tribunal that after June 2017 he went to a consultancy to state his case, but admissions were over, and places were full.  It was recommended that he start an English Language course, which he did and completed one class in September 2017. The applicant told the Tribunal that he remained unenrolled for almost one year. He explained that he tried to re-enrol but the universities would not accept him, and that they offered him a Diploma course in cooking, but that this was not related to his field.

20. The applicant also told the Tribunal that his grandmother had passed away which had left him grief stricken, but he was now in good health and he would like the opportunity to pursue further study in Australia.

21. The Tribunal has considered the applicant’s submission and his circumstances in which the applicant was aware of his visa conditions, he had not maintained his enrolment in a registered course for a period of eight months, he had not sought medical treatment and had no medical proof or diagnosis of his illness, nor had he notified the University of his situation or sought a deferment or advice on his situation. 

22. Accordingly, the Tribunal gives no weight to the applicant’s statement that he breached his visa conditions due to his health issues with a swollen foot and leg. Therefore, the Tribunal places no weight on this consideration in the applicant’s favour.

    Past and present behaviour of the applicant

23. The applicant has been co-operative and courteous in his dealings with the Tribunal.  No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

    Persons in Australia whose visa would be cancelled under s.140            

24. The Tribunal asked the applicant if there were any persons whose visa would be impacted under s.140 and he was unaware of any person who would be impacted in these circumstances.

25. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

    Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled

26. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

    Other relevant factors

27. Having considered the evidence presented by the applicant at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.

28. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. 

    DECISION

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

    Donna Petrovich
    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.