MAKAM (Migration)

[2019] AATA 5476

MAKAM (Migration) [2019] AATA 5476 (26 November 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vamshi Krishna MAKAM

CASE NUMBER:  1807514

HOME AFFAIRS REFERENCE(S):          BCC2017/3682368

MEMBER:L. Symons

DATE:26 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 November 2019 at 12:02pm

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 – purpose of stay in Australia – sought to mislead the Tribunal – decision under review affirmed

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 14 March 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 was not enrolled in a registered course since 17 March 2017 in breach of condition 8202(2). On 20 March 2018, he applied to the Tribunal for a review of that decision.

3. The applicant appeared before the Tribunal on 25 November 2019 to give evidence and present arguments.   

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. 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 AND FINDINGS

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 breach 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 was granted a Student visa on 29 June 2016 by the Department of Immigration (the Department). This visa was subject to a number of conditions including condition 8202. On 11 January 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa on the basis that he had breached condition 8202(2)(a) of his Student visa as he had failed to maintain enrolment in a registered course since 17 March 2017. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled. He did not respond to the NOITCC. The delegate cancelled his Student visa on 14 March 2018.

8. The applicant has provided the Tribunal with a written undated statement by himself, a Confirmation of Enrolment (COE) in a Diploma of Leadership and Management from 28 January 2019 to 24 January 2020 and a COE in an Advanced Diploma of Leadership and Management from 10 February 2020 to 6 August 2021.

9. The records of the Department of Education indicate that the applicant was enrolled in a Master of Computing Technology degree from 11 July 2016 to 30 June 2018 and his enrolment in this registered course was cancelled on 17 March 2017 for cessation of studies.  He then enrolled in a Diploma of Leadership and Management from 28 January 2019 to 24 January 2020 and an Advanced Diploma of Leadership and Management from 10 February 2020 to 6 August 2021 and his enrolment in these courses was cancelled on 30 August 2019 for non-payment of fees.

10. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that he had breached condition 8202(2) of his Student visa as he was not enrolled in a registered course from 17 March 2017 to 27 January 2019. He responded that he faced problems trying to find shelter and food. He stated that he then came to Sydney. He stated that there was currency devaluation in India and he could not pay his fees. He stated that he then found out that he had to study and complete a Master’s degree. He stated that when he returns to India he needs to have completed a degree in Australia.

11. During the hearing, the applicant conceded that he had breached condition 8202(2) of his Student visa.

12. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course between from 17 March 2017 to 27 January 2019 and accordingly has not complied with condition 8202(2)(a) of his Student visa.

    Consideration of the discretion to cancel the visa

13. Having found that the applicant has not complied with a condition of his Student 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’.

    Purpose of the visa holder’s travel and stay in Australia. Did the visa holder have a          compelling need to travel to or remain in Australia?

14. The applicant gave evidence to the Tribunal that he travelled to Australia for the purpose of studying. He stated that he wanted to remain in Australia so that he could complete a Master’s degree and return to India. He stated that he needs to finish his studies and cannot face his parents if he does not do so. He stated that he has not returned to India since he came here. He stated that he is two months from completing the Diploma.

15. The Tribunal accepts that the purpose of the applicant’s travel to Australia was to study. However, the Tribunal is not satisfied that he seeks to remain in Australia for the purpose of study.

16. The records of the Department of Education indicate that the applicant has not completed any registered course of study in Australia. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it may find that he had no intention of studying and that he had not fulfilled the purpose for which the Student visa was granted to him. He responded that he is completing a Diploma. When the Tribunal pointed out that he was not even enrolled in a Diploma, he responded that he needed to pay the full amount of his fees and get a COE reissued. He stated that he will finish the Diploma. When asked how he would do that if he had not been attending classes since August 2019, he responded that his education provider said they will extend the class and charge him $200.00 extra for re-issuing the COE.

17. The applicant gave evidence that he is currently working part time as a delivery driver for Sydney Wide Distributors. He stated that he has been doing this job for about one year. He stated that prior to that he worked as a kitchen hand for seven months until February 2018. The Tribunal is of the view that his focus has been on work rather than study.

18. The Tribunal does not consider that the applicant has demonstrated a compelling need to remain in Australia. The Tribunal does not give this consideration any weight in his favour.   

    The extent of compliance with visa conditions

19. The applicant was not enrolled in a registered course between 17 March 2017 and 27 January 2019. This is a substantial period of time during which he was in breach of condition 8202(2)(a) of his Student visa. The Tribunal does not accept his explanation for why he was not enrolled in a registered course during this period.

20. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his Student visa. The Tribunal does not give this consideration any weight in his favour.   

    Degree of hardship that may be caused

21. The applicant’s evidence is that the cancellation of his Student visa it would cause him considerable financial hardship. His evidence is that he is an only son and his parents sent him to Australia with the expectation that he would obtained a Master’s degree. He stated that their hopes rest on him. He stated that he would not be able to face his parents if he does not return to India with a Master’s degree. He stated that he has not returned to India since coming here in July 2016. He stated that his parents have arranged a marriage for his sister but have not fixed a date for the wedding as they are expecting him to return to India. He stated that he cannot explain the situation here to his parents.

22. The Tribunal has some sympathy for the applicant for the predicament he is in. The Tribunal accepts that he would suffer financial, psychological and emotional hardship if his Student visa is cancelled. The Tribunal accepts that it would also have a negative impact on his family, in particular, his parents. The Tribunal gives this consideration some weight in his favour.   

    Circumstances in which the ground for cancellation arose

23. In his written statement to the Tribunal, the applicant stated that when he came to Australia it was his first trip overseas, he felt alone and homesick and he had no idea how to find accommodation and food. He stated that he felt depressed and could not attend classes regularly. He stated that he decided to move to Sydney where he had friends and could get their support. He stated that the migration agents he consulted advised him that, as he struggled with his Master’s degree, he should study a Diploma course. He stated that none of the migration agents informed him that by changing to a Diploma course he would be breaching a condition of his Student visa.

24. The applicant stated that he instructed Aussizz Migration and Educational Consultants Group to lodge an application for review with the Tribunal and apply for a Bridging visa E in March 2018 and his migration agent confirmed that he had done so. He stated that he was awaiting receipt of a Bridging visa E so that he could enrol in another course. He stated that he also had financial problems at that time due to “currency demonetisation” in India. He stated that he received a telephone call from the Department in November 2018 informing him that his Student visa had been cancelled because his migration agent did not respond to the NOITCC.

25. The applicant stated that he was stressed and spoke to his migration agent who confirmed that they had provided him with a “false confirmation” and had not processed his application for a Bridging E visa. He stated that they then applied for a Bridging E visa in November 2018 and he was granted the visa within two weeks. He stated that if his education agent had helped him to obtain an extension of time to pay the fees or his migration agent had given him proper guidance his Student visa would never have been cancelled.

26. The applicant stated that since then he is “continuing a substantial part of his Diploma of Leadership and Management” course and is looking forward to starting the Advanced Diploma course when he successfully completes the Diploma of Leadership and Management. He stated that he enclosed the COEs for the courses. He stated that he is determined to complete the Diploma and then complete the Advanced Diploma. He stated that he has suffered a lot to get to this point and requested the Tribunal give him one more chance as he is on the verge of completing his course. He stated that completing his education is very important to his family’s future and he is their only hope.

27. During the hearing, the applicant gave evidence that when he came to Australia in July 2016 he initially lived in Queensland and was enrolled in a Master of Information Technology in Queensland. He stated that he expected to share accommodation with a friend in Queensland but when he got there the friend had moved to Melbourne. He stated that after a month he moved to Sydney as he has a cousin in Sydney and now lives with his cousin. He stated that he thought he could transfer to a campus in Sydney but his education provider in Queensland told him that it was too late to do so.

28. The applicant gave evidence that he instructed his migration agent to lodge an application for review with the Tribunal (after his Student visa was cancelled) and apply for a Bridging E visa on his behalf. He stated that he was unable to enrol in another course in Sydney until such time as he was granted a Bridging E visa. He stated that his migration agent confirmed that he had lodged an application for a Bridging visa and he waited a long time for it. He showed the Tribunal an email from his migration agent dated 20 March 2018 confirming that an application had been lodged with the Tribunal. When the Tribunal pointed out that it made no reference to an application for a Bridging E visa, he showed the Tribunal a text message from him dated 22 October 2018 stating “can you please send my Bridging visa.”

29. The applicant gave evidence that he is currently studying a Diploma of Leadership and Management at the Richmond School of Business, is doing well and passing the course. He stated that he last attended classes last week and attends classes twice a week.

30. The records of the Department of Education indicate that the applicant’s enrolment in the Diploma of Leadership and Management from 28 January 2019 to 24 January 2020 and an Advanced Diploma of Leadership and Management from 10 February 2010 to 6 August 2021 was cancelled on 30 August 2019 for non-payment of fees. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that it was not consistent with his evidence to the Tribunal, he was not currently studying and had sought to mislead the Tribunal.

31. The applicant responded that he went to the Richmond School of Business to speak to the Administration Officer but he was overseas so he texted him on WhatsApp. He showed the Tribunal an exchange of text messages on his mobile telephone which he stated took place three or four days ago. The text messages referred to the re-issue of his COE, payment of outstanding fees and his willingness to “pay for assignments”. When asked why he was paying for assignments, he responded that he needed to “for attainment” as he needed the Certificate. When the Tribunal pointed out that the text messages confirmed that he was not currently enrolled, he responded that they required full payment before they would issue a COE. He stated that he paid $500.00 and was required to pay a further $1,500.00.

32. The Tribunal pointed out to the applicant that he could not have been attending classes last week, as he previously stated, if he was not enrolled in a course. He responded that he used to attend classes twice a week but did not attend classes after his COE was cancelled in August. He stated that he went to the Richmond College of Business last week. When asked whether he went there last week because he had a hearing before the Tribunal, he responded yes and to get his COE re-issued.   

33. The Tribunal accepts that the applicant felt homesick and lonely and had difficulty adjusting to life in Australia when he first arrived here. The Tribunal is of the view that this is not unusual and that many international students would have a period of adjustment to living, studying and working in Australia. The Tribunal finds it extraordinary that he did not confirm the arrangements for his accommodation in Queensland before he arrived in Australia. The Tribunal accepts that he wanted to move to Sydney where he had the support of a cousin and friends.

34. The Tribunal is of the view that the onus was on him to ensure that he was able to continue his studies at his education provider’s campus in Sydney prior to moving to Sydney. The Tribunal does not accept that he was unable to enrol with a different education provider in Sydney due to the devaluation of currency in India and his inability to pay the fees for this reason. His own evidence is that he moved to Sydney one month after his arrival in Australia (in July 2016) and that the currency in India was not devalued until 2017.

35. Even after the applicant was issued with a NOITCC on 11 January 2018 and his Student visa was cancelled on 14 March 2018, he did not enrol in another course until 28 January 2019 and then enrolled in a Diploma of Leadership and Management despite the fact that he was issued with a subclass 573 Student visa to undertake a course in the Higher Education Sector. His enrolment in the Diploma of Leadership and Management was then cancelled on 30 August 2019 for non-payment of fees.

36. The Tribunal does not give this consideration any weight in his favour.

    Past and present behaviour of the applicant towards the Department

37. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department. The Tribunal gives this consideration some weight in his favour.   

    Whether there would be consequential cancellations under s.140 of the Act

38. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in his favour.

    Legal consequences of a decision to cancel the visa

39. If the applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. 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 finalize his affairs in Australia before departing.

40. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation. The Tribunal gives this consideration little weight in his favour.   

    Australia’s international obligations

41. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in his favour.

    Any other relevant matter

42. The Tribunal is of the view that the applicant sought to mislead the Tribunal, in both his written and oral evidence, into believing that he is currently studying and is on the verge of completing his Diploma of Leadership and Management and then moving on to study an Advanced Diploma of Leadership and Management. The reality is that his enrolment in these courses was cancelled on 30 August 2019, he has not studied since then and only sought to have a new COE issued last week as he had an imminent hearing before the Tribunal.

43. The applicant’s Student visa was cancelled by the Department on 14 March 2018. This was over one year and eight months ago. He could have completed a Diploma during this intervening period if he was committed to do so.

    CONCLUSION

44. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

   L. Symons
   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.