KAMASANI (Migration)

[2019] AATA 5486

KAMASANI (Migration) [2019] AATA 5486 (25 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arun Kumar Reddy KAMASANI

CASE NUMBER:  1923086

HOME AFFAIRS REFERENCE(S):          BCC2019/2358707

MEMBER:Amanda Upton

DATE:25 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 25 November 2019 at 3:15pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – genuine student – circumstances giving rise to non-compliance – family and personal difficulties – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 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 12 August 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2.       The delegate cancelled the visa on the basis that the delegate found that he had not been enrolled in a registered course between 26 April 2019 and 18 July 2019. 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 21 November 2019 to give evidence and present arguments

4.       The applicant was represented in relation to the review by his registered migration agent.

5.       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

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.       At the commencement of the hearing the Tribunal confirmed with the applicant that it was in possession and would consider the following documents;

·The applicant’s response to the Notice of Intention to Consider Cancellation.

·Prisms record.

·Medical certificates dated 12.4.2019-16.04.2019 and 01.07.2019 -06.07.2019

·Receipt of payment from Australis Institute of Technology and Information for a Diploma of Marketing and Communication.

·Various receipts for medication.

·Confirmation of Enrolment for a Diploma of Marketing with a course start date of 5 August 2019 and ending on 2 August 2020.

10.      The applicant confirmed that he had copies of all of these documents and further provided a receipt of an assignment submission dated 15 October 2019.

11.      At the commencement of the hearing the applicant agreed that he had not been in enrolled in a registered course over the period of 26 April 2019 to 18 July 2019.

12.      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

13.      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’.

14.      It is noted and weighs significantly in the applicant’s favour, that the applicant presented as being honest and genuine. He provided the explanation of his lack of enrolment without reference to the previously submitted documentation and did so in a manner that was consistent with the information previously provided. The Tribunal finds him to be credible.

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or to remain in Australia

15.      The applicant stated that he came to Australia to study and that continues to be his reason for wanting to remain. He originally came to complete a Masters level course however discovered that the subject matter was too difficult as he found the level in Australia was different from what he had previously completed in India. He had previously done a Bachelor in India and thought that the subjects in the Australian course would be the same level however he found them more difficult.

16.      He did try to complete the course but did not pass the subjects. He did exams including two supplementary exams but could not pass them. It was due to this that he decided to attempt a Diploma level course in Business instead. He did so after obtaining advice from an education consultant.

17.      He indicated that it was very important for him to continue his studies in Australia and strongly wished to do so. He is currently enrolled in a Diploma of Marketing and Communication and indicated that he was concerned that if he did not finish in Australia it would impact on his future career as he would have to commence again in India. He also indicated a desire to complete the Masters in Australia in the next two years. The Tribunal accepts that the applicant is genuine in what he said in relation to these matters.

The extent of compliance with visa conditions

18.      The applicant was not enrolled in a registered course for a period of approximately four months. Whilst the Tribunal finds that this period of time is not brief, the Tribunal does not consider it to be significant in the context of the explanation that the applicant gave for his non-compliance.

19.      There is nothing before the Tribunal to indicate that the applicant has not complied with any other conditions on his visa. The Tribunal expects that applicants adhere to the conditions on their visa and as such gives compliance with other conditions only minimal weight in favour of the applicant.

Circumstances in which the ground of cancellation arose

20.      The applicant detailed that in late 2018 his grandfather became ill, ‘on his deathbed’. He told the Tribunal that he had been very close with his grandfather and flew back to India to see him. He stayed in India over December and January. He then came back to Australia after which his grandfather passed away. He wanted to go back for the funeral however he took the advice of his brother and on the request of his parents remained in Australia to study.

21.      The applicant indicated that this period was very difficult for him and during the period through February – April he felt emotionally and physically unwell. He developed significant ear and stomach pain which continue to bother him currently however he is now able to study.

22.      He also developed a viral infection and continued to have difficulty coping emotionally with his grandfather’s illness.

23.      After this period of time, the applicant’s father was in a car accident in India and whilst it does appear that it could have had a worse outcome, he did suffer a hand fracture and required stitches to his head. This event also caused the applicant distress as he wanted to go back to India and help his family however he again took the advice of his brother and remained in Australia.

24.      The applicant explained that his brother was his older brother. He lives with his brother who is completing a Masters course. He said that he felt that he should follow the advice of his brother as that is what he should do as he is the older sibling. Despite his brother living with him the applicant indicated that he found it difficult not being around his family during this time.

25.      This combination of events caused the applicant to feel emotionally unwell and unable to cope with study, that he was feeling depressed and sick. The applicant did not provide any medical evidence relating to depression and when asked conceded that he did not go to a doctor about it. Whilst this potentially weighs against the applicant and it may be considered that he could have dealt with the situation better, the Tribunal considers that such a reaction to these events is not unreasonable. And the applicant appeared sincere and credible when detailing the impact these events had upon him.

26.      The Tribunal asked the applicant why he did not attempt to defer his course in the circumstances and whether he knew that he could. He indicated that he knew he could and did in fact try. He said that he had contacted the school to attempt to defer his course but was told that the fee was payable immediately in order for him to be able to do that.

27.      The applicant indicated that he could not pay the fee immediately as he had experienced difficulty with his loan on the basis of his course change and that his family were unable to assist at the time. He consequently could not defer the course.

28.      The applicant has subsequently paid all outstanding fees and has been able to enrol in his current course, having paid all the relevant fees for it. The applicant has continued to study pending the determination of the Tribunal hearing. He provided a document to the Tribunal that he indicated was a receipt of an assignment dated 15 October 2019. As the term has not finished, he was unable to provide any records of results.

29.      The Tribunal places weight in the applicant’s favour on the fact that the applicant has continued to study and the circumstances in which the ground of cancellation arose.

Degree of hardship that may be caused

30.      The applicant indicated that he really wished to pursue his studies and that his family would be disappointed in him if he could not continue, as would he. It is accepted that emotionally this may be difficult however the Tribunal does not consider it to be significant hardship.

31.      The Tribunal accepts that a cancellation of a visa results in opportunities lost and disappointment. It also accepts that there will be a financial loss for the applicant and a delay in achieving what they may have wanted to achieve in Australia.  However, it is expected that there will be consequences to a cancellation. As such, the Tribunal gives minimal weight to the considerations outlined by the applicant

Past and present conduct of the visa holder toward the Department

32.      There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

Whether there would be consequential cancellations under s.140

33.      There are no other people associated with the visa and as such the Tribunal affords this factor no consideration.

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

34.      The applicant indicated that if his visa remained cancelled he would return to India. Consequently it does not appear that this consideration is relevant. The applicant has not made any claims that relate to this consideration.

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.

35.      The applicant has provided no reasons for being unable to return to India and as such the Tribunal affords this factor no weight.

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

36.      This factor is not relevant and as such the Tribunal affords it no weight.

37.      Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

DECISION

38.      The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Amanda Upton
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.