Manjunath (Migration)

[2019] AATA 1353

Manjunath (Migration) [2019] AATA 1353 (23 April 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Deepak Manjunath

CASE NUMBER:  1711314

HOME AFFAIRS REFERENCE(S):           BCC2017/910844

MEMBER:Brendan Darcy

DATE:23 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 23 April 2019 at 4:43pm

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 – not a genuine student – non-enrolment period exceeded ten months – extenuating circumstance – serious workplace accident – non-compliance pre-dated accident – alopecia – financial difficulties – decision under review affirmed

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 22 May 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 had breached a condition imposed on his student visa and that the grounds for cancelling his visa outweighed the ground for not cancelling explain basis for the delegate’s cancellation decision. 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, a citizen of the Republic of India, appeared before the Tribunal on 7 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Tanari Venkata (Representative), The Tribunal hearing was conducted with the assistance of an interpreter in the Kannada and English languages.

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

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 decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 26 July 2016 and the stay period of the visa was extended up to and including 30 September 2018.

10. Having arrived in Australia on 19 February 2014, the applicant had been earlier granted a Subclass 573 visa on 7 February 2014 and he had not departed since his arrival.  

11. It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant has not been enrolled in a registered course of study since 11 August 2016 and that he had not further enrolled in any other course or study while holding this visa.

12. The departmental file indicates that that the applicant was contacted by a departmental official by email prior to issuing the Notice of Intention to Consider Cancellation (NOICC) on 9 May 2017, inviting the applicant to provide reasons not cancel the student visa within a five-day timeframe

13. On 16 May 2017, the applicant responded by email to the invitation to respond to the NOICC. Below is summary of those reasons:

    ·The applicant came to Australia purely for educational purposes;

    ·The applicant claimed he had been enrolled in a Master’s degree at Deakin University (Burwood campus) and that he successfully completed three (3) semesters in 2015. 

    ·However, on 31 August 2015, he had a ‘fatal accident at work’ due to which he had to cease studies to injuries to his foot.

    ·HE was also unable to maintain his expenses as he was unemployed and his parents were also unable to support him financially;

    ·Furthermore the applicant developed Alopecia Universalia which caused him to lose his hair all over his body and face, which, in turn, led him to become very self-conscious and did not want to leave the house. He relatedly claimed he was bullied by friends and suffered panic attacks and stress;

14. There is nothing from this NOICC response which disputed the grounds for cancellation.

15. The Department proceeded to cancel the applicant’s student visa on 22 May 2017 and then applied to have that cancellation decision reviewed by the Tribunal on 25 May 2017 with the decision record attached.  

16. Prior to the hearing, the applicant submitted a statement dated 5 February 2019 (later re-submitted with some edits on 16 February 2019) which acknowledged the applicant had not been enrolled for a period of time. The applicant claimed he had been enrolled in a Master’s degree at Deakin University (Burwood campus) and that he successfully completed 62 per cent of the coursework over three (3) semesters in 2015. The relevant transcript was submitted.[1] 

    [1] AAT Folio back of 36.

17. During the scheduled hearing on 7 February 2019, the applicant also explained that he did not complete his Masters of Information Technology and that he further enrolled in a Masters of Business Technology and a Masters of Professional Accounting at Holmes Institute on 22 July 2016. It was these enrolments that were cancelled on 11 August 2016 – less than a month after enrolment.  (Confirmation of Enrolments (CoEs) were also submitted.) [2]

    [2] AAT Folio 35 and back of 35.

18. Otherwise, the applicant did not dispute to the Tribunal, in either his written or oral evidence, the grounds for cancellation existed on the basis on his non-compliance with condition 8202.

19. On the evidence before the Tribunal, the applicant was not enrolled in a registered course study from 11 August 2016 to the date of cancellation on until 22 May 2017 in which he was enrolled in any course of study. 

20. Accordingly, on the evidence before the Tribunal, the applicant has not complied with condition 8202(2) for a period of more than ten (10) months.

21. As the applicant has not failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) does not arise. It follows that the visa cannot be cancelled.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

22. 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’.

23. It is noted that the applicant also provided a post hearing submission which included an email exchanges between from the education provider and the applicant. The emails indicate that the applicant had his CoE cancelled due to financial and family issues and asked to re-enrol into Holmes College on 24 April 2017. ON 8 May 2017,  the educational provider informed the applicant had to substantiate the reasons he was not enrolled. On the same day, the applicant emailed the applicant that he has a doctor’s certificate about his mental stated and that he explained the problems over the phone but did not have hard evidence for it although he could provide bank statements to support it.  On 17 May 2017, the education provider stated that, given the applicant cannot provide any supporting documentation, it will not consider any likely return to study at this college and recommended seeking requesting that the education provider.

24. Also provided was a dermatological report and a pathology report dated 25 February 2019 that the applicant appeared to have a diagnosis of alopecia areata.

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

25. The Tribunal originally applied for this Subclass 573 visa to conclude his partially completed Master’s coursework in information technology that he began under an earlier student visa. At the hearing, the applicant claimed that he found the fees too high and could not afford them due to financial difficulties. He stated that it remained his goal to complete a Master’s in information technology and to return to Bangalore where his family lives and where a large digital labour force resides. He specifically stated that he wished to become a business analysist with IBM, where his mother currently works.

26. It is acknowledged and accepted by the Tribunal that the applicant completed 62 per cent of his Master in information technology at Deakin University, indicating he did want to complete this degree.

27. However the applicant’s information technology enrolment was cancelled in July and the applicant subsequently enrolled in not one but two different Master’s degree at Holmes Institute. When the Tribunal enquired the reason the applicant applied for two Master’s degree which would have been considerably and excessively more expensive than remaining in his two-thirds completing Master’s degree. Rather than explaining this peculiar enrolment arrangement, the applicant said that he had extenuating circumstances. He also expressed concern about his parents being university educated and had little to academically demonstrate to them, if he could not complete the coursework.

28. The Tribunal finds that considering his overall evidence the applicant had the opportunity to complete his Master’s degree when he was granted a second student visa. However he chose not and he bizarrely chose to enrol in two full Master’s degrees before becoming non-compliant with condition 8202. This behaviour is not consistent with a genuine student who wishes, as the applicant has unpersuasively claimed, to complete a Master’s degree in information technology and for this reason the Tribunal cannot provide him with the benefit of the doubt that he is a genuine student who travelled to Australia for the purposes of gaining a Master’s degree to advance him professionally.

29. Taking all this relevant information into cumulative consideration regarding about the applicant’s purpose to travel to and stay in Australia, the Tribunal gives this considerable weight in favour of the visa in remaining cancelled.

    The extent of compliance with visa conditions

30. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions. The delegate decision does not record any information about further non-compliance.  The Tribunal gives this factor a little weight in favour of the visa not being cancelled.

31. The applicant was not enrolled in a registered course for a long period of time – over ten months. There is some evidence that the applicant attempted to re-enrol with Holmes College on 24 April 2017 as part of a post hearing submission. The Tribunal notes that this was just after the Department had emailed the applicant that it had important formal written notification to be forwarded to the applicant and wished to clarify the applicant’s contact details. Given the timing of this attempt to re-enrol, the Tribunal places little weight on it as evidence the applicant tried to mitigate his non-compliance without being prompted by the imminent cancellation of his student visa.  The Tribunal considers this length of time in which he was non-compliant with condition 8202 to be significant to the question whether his visa should be reinstated. As stated below, the applicant has not provided any satisfactory explanation, to the Department or the Tribunal, for this non-compliance. The Tribunal gives this factor significant weight towards the visa being cancelled.

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

32. The applicant acknowledged that he already has a Bachelor’s degree but stated that if he finished a Master’s degree in information technology from an overseas institution it would significantly assist him in India’s competitive labour market. While he was unsure if he could begin a Master’s degree in India in his circumstances, he said he did not want to begin such coursework from scratch, given he completed more than half of his Master’s degree in Australia. While the Tribunal accepts this, it does not accept this degree of financial and educational hardship in this regard to be significant or even notable. The Tribunal only places a little weight on this factor in favour of the visa not remaining cancelled.

33. The applicant also said that his parents do not know about his visa being cancelled and that he rarely answered their calls.  He further claimed that he will return to India deeply humiliated and that he will significantly disappoint his parents. The Tribunal accepts there will be a degree of emotional hardship in the applicant returning to India. However, given his parents continue to try to reach out to him which indicates ongoing love and concern for him, the Tribunal assesses that the disappointment and emotional distress will not be significant or ongoing for any long period of time. The Tribunal gives these hardship considerations some weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

34. The applicant has advanced as an extenuating circumstance that his non-compliance with condition 8202 began after a serious workplace accident at a service station in rural Victoria to his foot. The applicant provided documentary evidence (ambulance and hospital invoices) that on 31 August 2015 the applicant was admitted into an emergency department at a Victorian hospital where upon his lower leg, ankle and foot had been operated. He also provided medical evident dated 3 September 2015 that he had undertaken an appointment at the outpatient facilities at a hospital. The applicant explained that he was unable to work for two to three months following this accident.

35. While the Tribunal accepted the applicant experienced this serious injury, it did not explain his non-compliance with condition 8202 on 11 August 2017 which pre-dated the workplace accident; nor did it explain in itself that the applicant did not attempt to mitigate his non-compliance until April 2017 after the Department had contacted him, given the injury incapacitated the applicant for about three months.  The applicant stated that he knew he was doing the wrong thing and he could not face the situation. He also said that the cost of the medical support provided were covered by WorkCover, indicating his cost of living expenses were not affected by medical costs.

36. The Tribunal has also considered the applicant’s alopecia and any related mental conditions as further advanced by the applicant as an extenuating condition. The Tribunal accepts the applicants experienced alopecia which led to his losing his hair on his body, head and face and that this occurred after this workplace accident.  When the applicant was asked to the reason there were not psychological or medical evidence to support that his claim that had panic attacks, anxiety or any other mental health conditions, he undertook to provide evidence to support that in a post hearing submission. However no such evidence was presented despite being given the opportunity. The Tribunal accepts that the applicant experienced some emotional distress from alopecia but it does not accept this distress presented any notable or significant barrier to mitigate his non-compliance with condition 8202.

37. At one point in the hearing, the applicant also tried to advance that was also taking blood pressure tablets as an extenuating circumstance, although he admitted the tablets were purchased from over the counter and not through a medical prescription.  The applicant did not provide any medical evidence to support this diagnosis. The Tribunal does not accept this treatable condition to be an extenuating circumstance leading to his non-compliance with condition 8202 at all.

38. The Tribunal also noted that the applicant’s representative argued thatch applicant’s educational provider was forcing him to pay fees he could not afford as an extenuating circumstance. However, the education provider had only asking the applicant to honour the tuition fees into which the applicant freely entered – an expectation pertaining to all fee-paying international students. Neither does this explanation explain to the Tribunal to the reasons the applicant enrolled in two Master’s degree which were considerable more expensive than completing the partially undertaken Master’s degree in information technology. The Tribunal places no weight on this nonsensical argument as an extenuating circumstance at all.

39. The applicant also vaguely claimed that his parents were unable to financially support the applicant. In the NOICC, the applicant claimed it was due to difficulties experienced by his uncle around the time when the non-compliance occurred. When the Tribunal asked if the applicant had undertaken any able deferment or alternative funding arrangement to avoid or mitigate his non-compliance with condition 8202, the applicant said that international students are not granted loans (which the Tribunal does not accept) and he said he was too afraid to ask them for money following his non-enrolment. These answers strongly indicated that the applicant did not attempt avoid or mitigate non-compliance with condition 8202 in any meaningful situation until April 2017 after the Department contacted the applicant to update his contact details. The Tribunal does not accept the applicant’s financial situation was so serious as to amount to an extenuating circumstance beyond his circumstances.

40. The Tribunal accepts that it is plausible the applicant experienced some financial difficulties leading to the grounds for cancellation and that he experienced a physical injury and some emotional distress arising from alopecia as extenuating circumstances. However, the Tribunal finds these otherwise accepted reasons which claimed to have been beyond the control of the applicant to be weak, unsatisfactory and unsubstantiated. Indeed some of his testimony indicated he was aware he was only not upholding conditions of his visa but wilfully tried to ignore his non-compliance rather than address it.  None of the reasons put forward by the applicant satisfactorily indicated circumstances that were beyond his control in the sense they were significant barriers to maintaining enrolment or seeking re-enrolment in order to complete a Master’s degree for purpose of which the visa was granted. Taking the evidence as a whole, the Tribunal does not accept that there were any extenuating circumstances, both individually and cumulatively, beyond the applicant’s control that led to the grounds for cancellation. Based on this overall finding, the Tribunal gives these accepted circumstances little weight towards the visa not being cancelled.

    Past and present conduct of the visa holder towards the Department

1. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department in the past, including as a visa holder of an earlier student visa. The Tribunal gives this some weight in his favour.

   If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

2. Not relevant.

   whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

3. During the scheduled hearing, the Tribunal discussed the effect of section 48 of the Act if the cancellation of the applicant’s visa were to proceed. The applicant feared his parents will be ashamed of him and that he has made friends in Australia and would like to return. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia, arising from the operation of section 48 in limiting the applicant in applying for other visas and may have to depart or be detained. The Tribunal gives this only little weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

4. The applicant does not have any dependants. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

5. During the hearing, the applicant did not advance there were any international obligations that would be breached as a result of this visa remaining cancelled. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

   Any other relevant considerations

6. There were no other relevant considerations in this case. The Tribunal places very little weight on this additional relevant consideration.

   Conclusion

7. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

8. In considering all the available evidence provided in this decision, the Tribunal has placed more weight on those factors in favour of the visa remaining cancelled over those countervailing factors in favour of not being cancelling the visa.

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

   DECISION

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

    Brendan Darcy
    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.