Madagiri (Migration)

[2020] AATA 1055

Madagiri (Migration) [2020] AATA 1055 (6 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Siddartha Madagiri

CASE NUMBER:  1802897

HOME AFFAIRS REFERENCE(S):          BCC2017/4260699

MEMBER:David Thompson

DATE:6 April 2020

PLACE OF DECISION:  Perth

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

Statement made on 06 April 2020 at 2:53pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – homesickness, depression and failure in some subjects in first semester – non-enrolment in second semester – attempt to enrol at same level and enrolment at lower level – no evidence corroborating mental health claims – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 359AA

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 29 January 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 applicant was not enrolled in any course of study between 30 May 2017 and the date of the cancellation decision (29 January 2018),and so had breached condition 8202 on his visa. 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 16 October 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 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. According to the delegate’s decision record, as at 29 January 2018 (the date of cancellation) the applicant had not been enrolled in any course since 30 May 2017.

9. This was put to the applicant at hearing. The applicant readily admitted that this was true. On that basis, the Tribunal finds that 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

10. 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’.

11. The Tribunal has reached its decision on the basis of the applicant’s evidence at hearing, the contents of the Department’s file in this matter, and the following documentary evidence provided to the Tribunal by the applicant:

    a.a copy of the delegate’s decision record dated 29 January 2018;

    b.a copy of the Department’s Notice of intention to consider cancellation (NOICC) dated 2 January 2018;

    c.a document entitled “Supporting Statement Siddartha Madagiri”, undated but received by the Tribunal at hearing (Supporting Statement);

    d.Overseas Student Confirmation of Enrolment (CoE) A0BFCD79, in respect of the applicant’s enrolment in a Diploma of Leadership and Management, offered by Richmond School of Business between 10 October 2018 and 4 October 2019;

    e.CoE 9F898775, in respect of the applicant’s enrolment in an Advanced Diploma of Leadership and Management, offered by Richmond School of Business between 11 November 2019 and 7 May 2021;

    f.a letter from Richmond School of Business dated 14 October 2019, addressed “To Whom It May Concern”, confirming the applicant’s enrolment with that school;

    g.a statement of attainment dated 14 October 2019 and issued by Richmond School of Business in respect of components of the applicant’s Diploma of Leadership and Management course; and

    h.a letter of offer from George Brown College dated 26 April 2018, offering the applicant a place in a Certificate III in Business course.

12. The Tribunal has also relied on a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS), which it obtained prior to hearing.

    The purpose of the applicant’s travel to and stay in Australia

13. The applicant gave evidence that his original purpose in coming to Australia was to study for a Masters in Information Technology at Charles Sturt University. He stated that he did in fact enrol in and commence that course, but had great difficulty accustoming himself to study in an Australian university and suffered from depression and homesickness. He failed several subjects in his first semester, and did not enrol in any courses for the second semester of his Master’s programme. Rather, he started to seek enrolment in a course he felt he could manage.

14. The applicant’s evidence was that the first of these alternative courses was a Master of Business Administration. He stated, both at hearing and inn his Supporting Statement, that he enrolled in such a course at Group Colleges Australia in August 2017, but that as he could not pay his fees his CoE was cancelled. At this point in the hearing, the Tribunal put the applicant’s PRISMS record to him in the manner required by s.359AA of the Act, pointing out that it contained no mention of enrolment in a Master of Business Administration. The applicant’s response was to correct his previous evidence. He stated that he had received a letter of offer of a place in such a course, but could not pay the required fee. As a result, he did not enrol in the course and no CoE was issued.

15. The Tribunal asked the applicant whether he had retained a copy of the offer of enrolment in the Master of Business Administration he had mentioned. He said that he had not. The applicant also gave evidence as to his inability to pay the course fees for that course. He said that his family, who were supporting him during his studies in Australia, had sent him the funds for the second semester of his Master of Information Technology course, and that he would have used those funds to pay the fees for the Master of Business Administration course, but that he had loaned the money to a friend in India who wanted to come to Australia and that friend had not repaid the loan. No documentary corroboration of this oral evidence was provided to the Tribunal. The Tribunal is prepared to accept that the applicant found himself without funds at some point in what would have been the second semester of his Master of Information Technology course, and that he did attempt to enrol in a Master of Business Administration course at some time in or around August 2017. However, the Tribunal is not convinced that his inability to use funds that had been sent to him to pay for his second semester Master of Information Technology courses was due to an unpaid loan to a friend. The applicant was not altogether consistent in his evidence as to his attempt to enrol in a Master of Business Administration, as noted above. In the Tribunal’s view, the applicant’s account on this point has the air of an explanation devised for his family to account for the loss of money provided to him. The Tribunal does not accept it.

16. The applicant stated that he then decided he should enrol in a course at a Diploma level, with a view to working up to enrolment in a Master’s course. He stated that his education agent enrolled him in a Certificate III in Business at George Brown College. According to the document noted at paragraph 11(h) above, that course would have run from 7 May 2018 to 5 May 2019. However, the applicant stated that he found that the Certificate III in Business course was too basic for him, being an introduction to business studies for persons who had never undertaken such studies before. He therefore withdrew from the course and enrolled instead in a Diploma of Leadership and Management at Richmond School of Business. According to the CoE for that course (noted at paragraph 11 (d) above), that course ran from 10 October 2018 to 4 October 2019. The applicant stated that he completed that course and moved on to an Advanced Diploma of Leadership and Management, also at Richmond School of Business. According to the CoE for that course (noted at paragraph 11 (e) above), that course started on 11 November 2019 and will end on 7 May 2021.

17. The Tribunal accepts the applicant’s evidence as to the sequence and dates of his enrolments, as set out above, and finds accordingly. On that basis, the Tribunal finds that the applicant’s intention in coming to Australia was indeed that for which he made his visa application, that is, to study for a Master’s degree in Information Technology.

18. The Tribunal finds that the applicant abandoned his original purpose in coming to Australia at the point when he did not enrol in courses for the second semester of his Master of Information Technology course. That date would appear to have fallen some months prior to the date from which the applicant technically ceased to be enrolled in any course, and upon which the delegate relied. On the applicant’s own evidence, this was a deliberate decision on his part.  The applicant would appear to have decided, at some point in or around March or April 2018, to return to studying (although not to studying Information Technology). From that point, the Tribunal accepts and finds that his intention in staying in Australia was to study. That is witnessed by the fact that the applicant has been enrolled in courses of study since then and up until the date of this decision. For the reasons given above, the Tribunal cannot make any finding as to the applicant’s purpose in staying in Australia in the intervening period.

19. The applicant’s decision to abandon the studies for which he had obtained his visa at the end of his first semester weighs heavily against the applicant, although that is ameliorated slightly by the applicant’s subsequent studies and the intention underlying them.

20. There is no evidence before the Tribunal suggesting that the applicant has any compelling need to stay in Australia, other than his desire to study. The Tribunal gives this factor no weight, either for or against the applicant.

    The circumstances in which the ground of cancellation arose

21. The ground of cancellation arose on 30 May 2017. It was on that day that the applicant’s CoE for his Master of Information Technology course was finally cancelled, although as noted above he had not enrolled for any units in his second semester (that is, the first half of 2017).

22. At hearing, the applicant placed great weight on his difficulties in enrolling in an alternative Master’s degree programme as a factor exculpating his breach of condition. However, on the applicant’s evidence, that difficulty arose in or about August 2017, somewhat later than 30 May 2017. The Tribunal will, therefore, deal with that issue whilst considering the extent of the applicant’s compliance with his visa conditions.

23. The applicant’s evidence as to the circumstances in which the ground of cancellation arose was, in effect, that he was suffering from homesickness, was having difficulty acclimatizing himself to life, and particularly study, in Australia, and was struggling with his studies. The Tribunal accepts that evidence, there being no contradicting evidence before it. The applicant also stated that as a result of these matters he became depressed. The applicant did not provide any corroborating evidence of that, and did not give any evidence regarding seeking medical help. Whilst the Tribunal accepts that the applicant’s difficulties in the first semester of his studies in Australia affected his general mood, it is not prepared to find in the absence of any corroborating evidence and in the absence of any medical evidence that the applicant suffered from debilitating clinical depression. The Tribunal finds, therefore, that the applicant’s breach of condition was not a result of factors outside of the applicant’s control.

24. The applicant also gave evidence, particularly by way of his Supporting Statement, that he was not advised by anyone and did not know that by changing the level of his studies to Diploma-level courses he was breaching his visa conditions. That evidence was also advanced as an exculpatory factor. The applicant mistook the nature of the operative breach in advancing that evidence. The breach of condition which ultimately became the ground for cancellation of the applicant’s visa was not a change in the level of his studies, but rather his ceasing to be enrolled in a course of study at all between 30 May 2017 and 29 January 2018. Regardless of any misapprehension the applicant might have had regarding the level at which he had to study in order to avoid a breach of his visa conditions, the Tribunal does not accept that he did not appreciate that his visa conditions required to remain enrolled in a  course of study at all times. Nor does the Tribunal accept that if in fact the applicant did not understand that, his lack of understanding of such a fundamental condition is exculpatory.

25. The Tribunal finds that the circumstances in which the applicant’s breach of condition arose weigh against the applicant.

    The extent of compliance with visa conditions

26. The applicant’s breach of visa condition lasted from 30 May 2017 to 29 January 2018, some 8 months. This is a significant period of non-compliance with the relevant visa condition. As has been noted above, the applicant was substantively, if not strictly, in breach of the relevant condition for some time before that, in that he had not enrolled in any units and was not actually studying during the first semester of 2017. Further, the breached visa condition is itself a condition of great importance, going to the very rationale for the grant of the applicant’s student visa in the first place. These factors in themselves would weigh strongly against the applicant in the absence of any ameliorating circumstances. The applicant has argued that certain elements of his circumstances should be taken as ameliorating, and it is to those circumstances that the Tribunal now turns.

27. The applicant relied heavily on his attempt to enrol in a Master of Business Administration, and the circumstances in which he was unable to do so, as an ameliorating factor. The applicant’s evidence as to those circumstances has been related, and to some extent discussed, above.

28. As was stated above, on the applicant’s evidence the first occasion on which he took action capable of bringing his breach of condition to an end was his attempt to enrol in a Master of Business Administration course at Group Colleges Australia in or about August 2017. The reason that attempt failed was, on the applicant’s evidence, that he was unable to pay the course fees so that no CoE was ever issued to him. Part of the explanation for the applicant’s inability to pay course fees has already been mentioned – the loan he made of his Semester 2 course fees to a friend in India, and that friend’s failure to repay the loan. The Tribunal has dealt with that matter above, and will not repeat itself here. However, the applicant advanced a further explanation of his financial circumstance. His evidence was that although his family was supporting him in his studies in Australia, they were unable to raise the money to pay the fees to be charged by Group Colleges Australia because “at that time India was going through a crisis of currency demonetisation” and that “although my father tried all options … no one was able to get cash from banks.” (Supporting Statement, paragraph 4).

29. It is a matter of objective fact that India demonetized certain banknotes on and from 8 November 2016, and that this move led to a cash shortage and deleterious economic effects. There is, therefore, some plausibility in the applicant’s evidence on this point, and the Tribunal is prepared to accept it. Further, it is clear that this factor was a circumstance outside of the applicant’s control. Further funds from the applicant’s family was, of course, only one source of funds that might have been available to pay fees to Group Colleges Australia. The other was the money the applicant’s family had sent him to pay fees for his second semester Master of Information Technology courses.  The Tribunal’s findings on that point have been set out above. Despite those findings, the applicant’s evidence regarding the effect of the Indian demonetization crisis on his ability to pay fees to Group Colleges Australia does ameliorate the extent of his breach of condition to some extent, although not so much as it would if it were the only operative circumstance.

30. The Tribunal finds that the extent of the applicant’s breach weighs against him, and gives this factor significant, although not overwhelming weight.

31. The applicant’s subsequent enrolments should be mentioned briefly in this connection. Those enrolments (see paragraph 16 above) did not, strictly speaking, bring the applicant’s breach of condition to an end. That had already happened when his visa was cancelled, and with it the conditions it imposed on his stay in Australia. For that reason, the Tribunal does not consider that those subsequent enrolments are relevant to the issue of the extent of the applicant’s breach, although they are relevant to other issues before the Tribunal in this case.

    The degree of hardship that may be caused if the applicant’s visa remains cancelled

32. The applicant was asked at hearing whether he would suffer any hardship if his visa were to remain cancelled. His response was that he would suffer the hardship of having to return home and face his family without having obtained an Australian qualification, despite their financial support. He stated that he would suffer great shame in having to do so. He also stated that his family would suffer the hardship of having effectively wasted. The Tribunal accepts that these matters constitute hardship, albeit hardships that are predictable consequences of the applicant’s breach of condition. The Tribunal gives this factor only a little weight in the applicant’s favour.

    The past and present behaviour of the applicant towards the Department

33. There is no evidence before the Tribunal that the applicant has been uncooperative in his dealings with the Department, or has dealt with the Department other than in good faith. The Tribunal gives this factor a little weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

34. There is no evidence that cancellation of the applicant’s visa would result in any consequential cancellation under s.140. The Tribunal gives this factor no weight, either for or against the applicant.

    Whether cancellation of the applicant’s visa would carry mandatory legal consequences

1. If the applicant’s visa remains cancelled, he may become an unlawful non-citizen liable for detention under s.189 of the Act, and to removal from Australia under s.198 of the Act if he does not depart voluntarily. He would also be subject to s.48 of the Act, which would limit the classes of visa for which he would be entitled to apply whilst in the migration zone. Cancellation would also mean that the applicant would be unable to satisfy public interest criterion 4013 for a period of up to 3 years, which would limit his entitlement to be granted a further student visa. The Tribunal accepts that these mandatory legal consequences could prove detrimental to the applicant, but observes that they are consequences provided for under the Act. The Tribunal therefore gives this factor only very slight weight in the applicant’s favour.

   Whether cancellation of the applicant’s visa would result in a breach of Australia’s international obligations

2. Nothing in the evidence before the Tribunal suggests that cancellation of the applicant’s visa would result in a breach of any of Australia’s international obligations. The Tribunal gives this factor no weight, either for or against the applicant.

   Any other relevant matters

3. No other relevant matter arises on the evidence before the Tribunal.

4. Considering the circumstances as a whole, the factors weighing against the applicant outweigh those weighing in his favour. The Tribunal accordingly concludes that the visa should be cancelled.

   DECISION

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

   David Thompson
   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.