Kallala (Migration)

[2019] AATA 5993

Kallala (Migration) [2019] AATA 5993 (19 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vivek Kumar Reddy Kallala

CASE NUMBER:  1832846

HOME AFFAIRS REFERENCE(S):         BCC2018/3737651

MEMBER:D. Triaca

DATE:19 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 19 August 2019 at 5:30pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Information Technology – Commercial Cookery – not enrolled in registered course for 11 months – enrolment cancelled – unsatisfactory attendance – language difficulties – financial difficulties – illness in family – emotional issues – lack of academic progress – failed to take steps to remedy situation –decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Boettcher v Driscoll (2014) SASC 86
de Angelis v de Angelis [2003] VSC 432
Dimic v Djekovic (2014) NSWSC 1502
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 November 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 had not been enrolled in a registered course of study since 27 April 2018. 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 14 August 2019 to give evidence and present arguments.  

4. The applicant was represented in relation to the review by his registered migration agent who made submissions on behalf of the applicant.

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 delegate’s finding was based on a report from the Provider Registration and International Student Management System (PRISMS) that stated the applicant had not been enrolled in a registered course of full time study since 16 November 2017. The delegate identified the relevant period from 16 November 2017 to 1 November 2018 as being the period in which the applicant was not enrolled in a registered course of study. This amounted to approximately 11 months during which the applicant was in continuous breach of the conditions of his visa.

10. In his oral evidence before the Tribunal, the applicant confirmed that the delegate’s finding that he had not been enrolled in a registered course since 16 November 2017 was true and correct as was the fact that he remained unenrolled for that period of approximately 11 months after the cancellation of his enrolment.

11. Accordingly, the Tribunal is satisfied that the applicant was not enrolled in a registered course of study for the period 16 November 2017 to 1 November 2018 and so finds that the applicant was in continuous breach of condition 8202(2) of his visa for a period of approximately 11 months from 16 November 2017.

    Consideration of the discretion to cancel the visa

12. 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.’

    Applicant’s Evidence.

13. In his oral evidence before the Tribunal, the applicant stated the following in summary:

    (a)He is a 25 year old citizen of India. He was granted a student visa on 27 July 2016 and arrived in Australia on 9 August 2016.

    (b)His plan was to study Information Technology before going back to his home country, and he enrolled in ELICOS at Charles Sturt University.

    (c)He commenced studying IT at Charles Sturt University and undertook the first semester commencing in November 2016.

    (d)He reports that he found his studies hard due to difficulties he had learning English. He says he passed only one subject in first semester.

    (e)He says that in early 2017 he attempted to sit supplementary exams on account of the subjects he failed. He says that Charles Sturt University required him to pay fees and to enrol in 5 subjects for the next semester. He considered that he had failed a number of subjects he would not be able to pass 5 subjects. Accordingly, he decided to leave Charles Sturt University and enrol in cooking courses instead.

    (f)He said that around this time he realised that he did not enjoy IT and wanted a different study path. It also coincided with his father suffering financial losses in his business in India and as a consequence he did not enjoy the same level of financial support he once had. Consequentially he was interested in the cooking courses on account of their lower fee structure.

    (g)He enrolled in a Certificate III in cooking at Australian Careers Education in May 2017. He says he commenced studying that course.

    (h)In about August 2017 his grandfather became ill in India and he returned home for a period of 2 months. He says he was close to his grandfather and this upset him greatly. He states he became depressed on account of his grandfather’s condition. However, he did not seek any medical treatment for depression.

    (i)He was told by the course provider that he would be able to leave Australia for one month on account of his grandfather’s illness. He took 2 months and when he returned from India the course provider indicated his attendance record was unacceptable. In November 2017 his enrolment was cancelled. He said the course provider attempted to contact him but he did not have his telephone switched on. He says he was depressed during this time.

    (j)He said that he completed approximately 60% of the Certificate III in Commercial Cookery.

    (k)In 2018 he stayed at home. He did not work and he did not study. He did not like leaving the house. In November 2018 his visa was cancelled.

    (l)His father’s financial situation had improved by late 2018 and he had hoped to return to study cookery. However, his money did not come through and he did not re-engage in study.

    (m)He hopes to remain in Australia and complete studying commercial cookery.

14. The Tribunal has read and had regard to the written submissions filed on behalf of the applicant on 6 August 2019. The applicant’s representative, Mr. Gupta, made oral submission on behalf of the applicant and the conclusion of the applicant’s evidence. I have also had regard to those submissions.

    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

15. The term compelling was the subject of detailed consideration by Crennan J (as her Honour was then) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204 (“Paduano”). Her Honour set out the jurisprudence in relation to the words “compel” and “compelling” and the various dictionary meanings and stated, relevantly:

    “At [35] A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.

16. Commenting further on the adjective “compelling” in the Regulations, at [37], Crennan J said:

    “The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’.”

17. “Need” was considered in Dimic v Djekovic (2014) NSWSC 1502, per Hallen J, at [111] as follows: "Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from " want ". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]:

    "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely ' want ', but it falls far short of 'cannot survive without'."

18. ‘Need’ and ‘ want ’ are not interchangeable. The difference between ‘need ’ and ‘ want ’ is significant. See Boettcher v Driscoll (2014) SASC 86 at [41] per David J.

19. Having regard to these authorities, I take the phrase “compelling need“ to have the ordinary meaning of the words, compelling, demanding attention or demanding interest or being forceful,  and need requiring something more than a mere want, but falling far short of requiring the applicant to demonstrate necessity in the sense that he cannot survive without it.

20. The Tribunal accepts that the applicant arrived in Australia with a purpose of studying and in accordance with this purpose enrolled in and commenced studying ELICOS and IT courses. The applicant then changed his focus to cookery and commenced studying Certificate III in Commercial Cooking in 2017.

21. However, the Tribunal considers that the applicant’s purpose ceased to be studying in mid-2017 noting that he left Australia for a period of 2 months and he did not re-engage in study upon his return. His enrolment was cancelled in November 2017. Since that time he remained in Australia on a student visa but has not studied and was not enrolled in a registered course of study for a period of approximately 11 months. The Tribunal considers this is a substantial period of time.

22. The Tribunal accepts that if the applicant‘s visa was not cancelled he would return to study and complete the commercial cooking course. However, his intention to resume studying must be tempered by the extent of the breach and his lack of academic progress in Australia. The applicant has been in Australia since 2016 but has provided no evidence of any academic progress in that time. His own evidence is that he passed one subject in IT and then completed 60% of Certificate III in Commercial Cookery so he has failed to complete any courses in Australia. The Tribunal does not consider this is satisfactory academic progress in light of the time the applicant has been in Australia. Accordingly, this factor weighs towards cancelling the applicant’s visa.

23. Having regard to the applicant’s evidence, the Tribunal does not consider the applicant has demonstrated a compelling need to travel and stay in Australia.

    The extent of compliance with visa conditions.

24. The applicant confirmed that he was not enrolled in a registered course of study from  16 November 2017 until the cancellation of his student visa on 1 November 2018, a period of approximately 11 months. This is a substantial period of time. The non-compliance with condition 8202(2) for a substantial period of time weighs in favour of  cancelling of the visa unless the Tribunal accepts the reasons for non-enrolment.

25. In addition to the failure to enrol for a substantial period of time, the Tribunal also has regard to the fact that during this period of non-enrolment the applicant does not appear to have attempted to resolve the situation by taking meaningful steps to re-engage with study.

26. In his evidence, the applicant stated reasons for his non enrolment as a combination of factors being difficulties with English, financial issues and depression on account of his grandfather’s medical condition that required him to leave the country.

27. The applicant stated his family suffered some financial losses resulting in him not receiving the level of financial support he had anticipated. The applicant appears to have dealt with this issue by changing his enrolment from IT to cooking. The Tribunal notes that the applicant did enrol in the cooking courses and commence studying those courses and the cancellation of his enrolment was due to non – attendance rather than any financial reason. He stated that lack of finance prevented him returning to study but provided no evidence of this and, on any view, any attempt he made to return to study did not occur until he had been in breach of the student visa for a considerable period of time. Accordingly, the Tribunal does not consider that financial issues contributed to the applicant’s failure to maintain his enrolment.

28. The Tribunal accepts that it is difficult to travel overseas away from family and support networks and learn a second language. However, being away from home and learning a second language is something that many international students must deal with when they choose to study in Australia. Notwithstanding this hurdle, it is a requirement that students on a student visa maintain their course enrolment for the duration of their stay in Australia.

29. The Tribunal accepts that the applicant has a close relationship with his grandfather and his grandfather’s illness concerned him enough to return home in August 2017. However, the applicant’s position is that upon his return from India, his grandfather’s illness affected him to such a degree that he was stricken by a depression that was so great he was unable to study for a substantial period of time.

30. The applicant has provided no medical evidence in relation to his depression. He says he did not seek medical treatment for depression. The Tribunal considers that the applicant’s evidence falls well short of establishing that he was unable to study for a period of approximately 11 months due to depression and does not accept that the applicant suffered a chronic mental health condition that prevented him from studying.

31. It is also worth noting that the Tribunal considers it unlikely that if the applicant was indeed suffering from a mental health condition that left him unable to study for that length of time, that this condition would have seemingly resolved itself without the need of any medical intervention.

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

32. The applicant stated that his family is dependent on him and will suffer financial hardship in the event of him returning to India without a qualification. The Tribunal accepts that the applicant‘s family has invested money in his Australian education and he and his family will be disappointed if he returns home without any academic qualification and this would cause him some stress and anxiety.

33. In these circumstances, the Tribunal accepts that the applicant will suffer some hardship and it gives some weight in the applicant’s favour. However, the applicant’s evidence on the question of hardship does not establish that this would constitute significant hardship and the Tribunal only places minimal weight on this point.

    Past and present behaviour of the visa holder towards the department.

34. The applicant appears to have co-operated with the Department and there is no adverse evidence against the applicant in this regard. I give this some weight towards not cancelling the visa.

    Whether there would be any consequential cancellations under s 140

35. There is no evidence suggesting that if the applicant’s visa is cancelled, any other persons visa will be cancelled 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 , or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

36. The Tribunal recognises that, if the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. 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 finalise his affairs in Australia before departing.

37. If his visa is cancelled, the Tribunal also recognises that he will be subject to s 48 of the Act which means he will have limited options when applying for further visas, including the possibility that he may not be granted a temporary visa for 3 years from the date of the cancellation.

38. The Tribunal considers these are the intended consequences of the legislation and reflects the seriousness of the breach.

39. In any event, the applicant’s evidence was that he has a pending application for a permanent residency in Canada, he anticipates that he will successfully obtain this visa due to the strength of his academic qualifications in his home country, therefore there is no indication that he would become unlawful or be subject to detention so I give this factor no weight.

    Whether any international obligations, including non-recoupment and best interests of the children as primary consideration, would be breached as a result of the cancellation.

40. The circumstances of the case are not such as to engage Australia’s international obligations.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.

41. This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.

    Any other relevant matters.

42. The Tribunal received and considered written and oral submissions made by the applicant’s representative Mr. Gupta.

43. Those submissions were critical of the Department, stating that the applicant had not been given “ample opportunity to explain the circumstances that led to the cancellation of the CoE.”  This was patently incorrect and the applicant’s representative accepted that proposition after I highlighted that on 26 September 2018 the applicant was invited to respond to the Department’s Notice of Intention to Consider Cancellation of the visa (NOICC) and the applicant provided his written response on 2 October 2018.

44. The applicant’s representative referred to a Tribunal decision of Pathan (Migration) [2017] AATA 2739. When asked the relevance of that decision, he stated it was an example of the Tribunal exercising its discretion not to cancel a visa. That is true. However, having read that case, it is clearly distinguishable on the facts, noting that the applicant in Pathan presented medical evidence consistent with a serious back issue which the Tribunal accepted impacted on his ability to study. The applicant in this case did not present any medical evidence and the evidence did not establish there was any medical reason for his failure to maintain his enrolment.

1. One further matter. It is apparent that the applicant may have also breached visa condition 8516 due to the downgrading of his studies from a Bachelor course to the lower level cooking course. As the visa was cancelled for failure to maintain enrolment in breach of condition 8202, I do not make any findings in relation to any breach of condition 8516 as I do not consider it relevant to this application.

2. There appear to be no other relevant matters of significance in relation to the present application for review.

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

   DECISION

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

   D. Triaca
   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.