Gujjarlapudi (Migration)

[2020] AATA 4491

Gujjarlapudi (Migration) [2020] AATA 4491 (25 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Hemanth Gujjarlapudi

CASE NUMBER:  1731689

HOME AFFAIRS REFERENCE(S):          BCC2017/3518647

MEMBERS:Senior Member P. Wood (Presiding)

Member P. O'Farrell

DATE:25 August 2020

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 25 August 2020 at 6:13 pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – no compelling need to remain in Australia – lengthy breach – circumstances giving rise to non-compliance – mental health condition – beyond the applicant’s control – decision under review set aside

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 7 December 2017 made by a delegate of the Minister for Immigration and Border Protection 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 was in breach of condition 8202 as the applicant was not enrolled and that the reasons not to cancel the visa did not outweigh the reasons to cancel. 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 in 2019 to give evidence and present arguments. The Tribunal received oral evidence from the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Telegu (Indian) and English languages. After the hearing, the Tribunal wrote to the applicant’s representative inviting further submissions. The Tribunal has read and had regard to the applicant’s response to this (contained at Tribunal folio 96).

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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?

1. 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).

2. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

3. The applicant stated that he was not enrolled in a registered course at the date of cancellation of the visa.

4. 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

1. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

2. The applicant is an Indian national born in February 1990. He arrived in Australia on 10 August 2013.

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

1. The applicant has stated that his intended purpose of travel to and stay in Australia was to study.

2. Since arriving in Australia, the applicant has finished:

   a.Certificate III in Commercial Cookery;

   b.Certificate IV in Commercial Cookery;

   c.Diploma of Hospitality.

3. He has had enrolments cancelled in:

   a.Master of Information Technology

   b.Certificate III of Commercial Cookery (applicant changed providers)

   c.Certificate IV in Commercial Cookery

   d.Diploma of Hospitality

   e.Certificate IV in Commercial Cookery

   f.Bachelor of Business.

4. At the hearing, the applicant explained that when he first came to Australia, he enrolled to do a Master of Information Technology course. He explained that he encountered difficulties with that course and subsequently discontinued those studies.

5. He explained that he then undertook cookery courses and was working in a bakery 10 hours per week.

6. The Department sent a NOICC to the applicant on 8 November 2017. In his response to the NOICC, the applicant stated that ‘my dream is to get higher education here in Australia. I will finish my masters and I will leave the country. I promised my father that I wish finish my studies ASAP and go back to my home country….I want to finish my masters and leave the country with a pride of having a Masters.’

7. During the hearing, the applicant gave evidence that his plan for the future was to do an MBA and then to do a course or business back in India. He stated that his father wanted him to obtain a job in the government sector. He stated that if he did not follow the path that his father has chosen for him, that his plan would be ‘maybe a restaurant or something like that.’ 

8. He gave evidence that since the cancellation, he spends most of his time at home, with friends and at an autoshop where his friend works in Tullamarine. He stated that he has no work rights and that his family and friends financially support him. He gave evidence that he lives with a couple of his friends.

9. The Tribunal finds that the failure of the applicant to maintain enrolment is not consistent with the purpose of the applicant’s travel and stay in Australia for the purpose of study and although the applicant may wish to continue studying, he has not demonstrated a compelling need to remain.

The extent of compliance with visa conditions

1. The applicant was granted a TU500 visa for the purpose of study. The study visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia. In order to be granted and remain compliant with student visa obligations, the visa holder must maintain enrolment.

2. The applicant has not complied with the condition attached to his visa as he has not been enrolled in a full-time registered course of study since 19 April 2017.

3. The NOICC was sent to the applicant on 8 November 2017 – some 6 months after the applicant’s educational provider cancelled the enrolment. 

4. The Tribunal considers that the breach of condition 8202(2) here is significant, having been for a long period. The Tribunal therefore gives the lengthy breach of condition 8202 some weight towards the visa being cancelled.

5. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. The Tribunal gives this some weight towards the visa not being cancelled.

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

1. The applicant gave evidence that most of his friends in India are already settled down and married. He stated that the MBA would take 2 years to complete. He expressed concern that it may be ‘too late’ for him to find a job.

2. He stated that he had made mistakes because of health and mental issues that he had faced. He expressed concern that if the visa remains cancelled, that he would be returning to India as a failure.

3. He explained that he has a shy nature and that in his own country, with his own language, he can manage.

4. The Tribunal accepts that there would be some hardship to the applicant and his family if the visa remained cancelled, and the Tribunal accepts that there may be some difficulties for the applicant with his family and his career. However, the Tribunal does not accept, on what he has said and the information before the Tribunal, that such hardship is significant and the Tribunal gives this only limited weight towards the visa not being cancelled.

Circumstances in which ground of cancellation arose.

1. The grounds for cancellation arose because the applicant failed to maintain enrolment in a full-time registered course of study.

2. In his response to the NOICC, the applicant provided:

   a.An email to the Department dated 20 November 2017;

   b.A death certificate which the Tribunal understands to record the death of the applicant’s uncle on 4 February 2017;

   c.A report from ‘Better still…Psychological and Assessment Services’ in the form of a comprehensive psychological assessment dated 18 November 2017.

3. Within those documents, and combined with the evidence given by the applicant at the hearing:

   a.At that the time leading up to the cancellation, it was a stressful time for him as there was a ‘lot of death around him’.  He referred to the death of a friend of his together with the death of his uncle on 4 February 2017.  He explained that he had a very close relationship with his uncle and was aggravated because he could not attend his funeral.

   b.He had received a Certificate of Enrolment to undertake a Bachelor of Business ‘however because of personal and family relations problems, he could not pay attention to his tertiary education and did not enrol in the Bachelor’s Degree.’

   c.He began consulting with a registered psychologist on 10 March 2017. Prior to that date, he had not consulted with a registered psychologist before. He was due to commence his Bachelor of Business on 20 March 2017. His education provider cancelled his enrolment on citing ‘Non-commencement of studies’ as the reason.

   d.His personality involved ‘melancholy and obsessive tendencies’ and that he was a ‘worrier’ that has suffered from stress and depression.

   e.He gets performance pressure from his parents in relation to the expectation of him to complete his tertiary education as promptly as possible and with good marks and that associated with his personality, he tends to be introverted and tends not to speak up and that he internalised many of his problems resulting in a depressed mood, stress and anxiety.

   f.He has difficulties when he sits for examinations that are linked to his anxiety problems.

   g.As at 14 November 2017, the psychologist reported an improvement in the mental status of the applicant in terms of a change in the applicant’s perception of how other perceive him and that he wanted to work on his pessimistic personality thinking style. The psychologist recommended a further period of consultation. The psychologist noted that he still has challenges with anxiety and stress as ‘he does not know whether he would be allowed to continue his tertiary education in Australia’.

   h.The psychologist formed the view that he suffers from Generalised Anxiety Disorder (GAD) with Social Fear Features.

4. In all of these circumstances, the Tribunal is satisfied that the health condition of the applicant at the time of and leading into the cancellation of the visa were circumstances in which the ground for cancellation arose were beyond the visa holder’s control. The Tribunal finds that this weighs significantly against the visa remaining cancelled.

Past and present behaviour of the visa holder towards the Department

1. The delegate’s decision states that there is no information to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this some weight in favour of the visa not remaining cancelled.

Whether there would be consequential cancellations under s.140

1. There would not be any consequential cancellations under section 140 as a result of cancellation.

Whether there are mandatory legal consequences

1. The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia, and it may be difficult to be granted further visas, and he may be subject to a three-year exclusion period unless relevant Public Interest Criterion is met.

2. It is unlikely however that the visa applicant will be detained but rather that he will be provided with a time-limited period in which he can leave the country or apply for review of the decision.

Whether any international obligations would be breached as a result of the cancellation

1. The circumstances of this matter are not such that would engage Australia’s international obligations.

Any other relevant matters.

1. The applicant was asked during the hearing whether there were any other relevant matters that he wanted to bring to the attention of the Tribunal. The Tribunal has carefully considered the evidence of the applicant but we find he has not advanced any other relevant matters.

2. Considering the circumstances as a whole, with particular weight being given to the health condition of the applicant, the Tribunal concludes that the visa should not remain cancelled.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

P. Wood
Senior Member (Presiding)

P. O'Farrell
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.