Meda (Migration)

[2019] AATA 1039

Meda (Migration) [2019] AATA 1039 (29 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pramodh Meda

CASE NUMBER:  1828139

HOME AFFAIRS REFERENCE(S):           BCC2018/2435146

MEMBER:Adrienne Millbank

DATE:29 March 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 29 March 2019 at 11:46am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances of non-compliance – length of non-enrolment – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 September 2018 made by a Delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a 29 year old citizen of India, who first arrived in Australia on 13 October 2018 on a Student (Subclass 500) visa valid to 15 March 2019. At the time of application he was enrolled in a Master of Information Technology course at Charles Sturt University, which had a course start date of 7 November 2016 and an end date of 9 November 2018. This enrolment was cancelled on 31 May 2017, for the stated reason of non-payment of tuition fees.

3. The Delegate cancelled the visa on 17 September 2018, under s.116(1)(b), on the basis that the applicant did not meet condition 8202, specifically, subclause 8202(2)(a) which requires the visa holder to be enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 19 March 2019 to give evidence and present arguments.

5. At the hearing, adopting the procedures in s.359AA of the Act, the Tribunal informed the applicant that it had information, namely, copies of his Provider Registration and International Student Management System (PRISMS) records, which could lead or contribute, depending on his comments in response, to the decision under review being affirmed. The Tribunal advised that the information comprised details about his course enrolment and outcome of and was relevant because it suggested that he was not a genuine, motivated student. The Tribunal also advised the applicant that it had a copy of his international movement records. These did not contain information that would lead or contribute to the decision being affirmed.

6. The Tribunal provided the applicant with a copy of his PRISMS records, and advised him that he could seek an adjournment to consider his response and consult with his agent. The applicant did not seek an adjournment. He accepted the validity of the information in his PRISMS records; confirmed that his enrolment was cancelled on 31 May 2017. He confirmed also that he has made one trip back to India, from 21 July 2017 – 5 September 2017, since arriving in Australia. 

7. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

8. 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

9. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

10. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance 8202 attached to the applicant’s visa. This condition requires that a visa holder must be enrolled in a full-time registered course.

11. The applicant’s PRISMS records show and that applicant confirmed at hearing that his enrolment was cancelled on 31 May 2017, and that he held his Student visa for over 15 months without a valid enrolment.

12. The Tribunal is satisfied that the ground for cancellation in s.116(1)(b)) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

13. 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. In his written response of 13 September 2018 to the Department’s Notice of Intention to Consider Cancellation (NOICC) provided to the applicant on 30 August 2018, the applicant stated that the purpose of his travel to Australia was to complete the Masters course, but that he could not complete it due to personal issues. Firstly, he lost his girlfriend ‘in the start of early 2017’; and secondly, ‘my father was facing a financial hardship’. He claimed that he and his girlfriend had discussed marriage and their parents had agreed, but after he came to Australia she fell ill and died ‘in early 2017’. He stated ‘my parents and her parents have spent lot of money’ on her health care. He claimed he fell into depression and ‘due to this issue I did not continue the studies, I went to India to see her parents and that situation made me more depressed as they wanted me to see as a son in law. Their tears for her daughter were un stoppable. I wanted to be with them and support them but my father has advised me to go back and concentrate on my education’.

15. The applicant further claimed in his response to the NOICC that before receiving the notice, he had been planning to re-enrol ‘in the November 2018 intake’. He advised that he had studied and worked in Canada and complied with his visa conditions in that country. He stated that he was  ‘coming out of the situation’ that stopped him from being able to concentrate on his studies; that he wanted to return to university; and  that the visa cancellation would ‘dent my life and I will not have any further options’.

16. No written submissions or documentary evidence was provided to the Tribunal. At hearing, in response to questions, the applicant provided information the details of which caused the Tribunal to doubt his story above provided to the Department, and further, to doubt his credibility in regard to his claimed purpose for travelling to and remaining in Australia.

17. At hearing the applicant denied that his father has ever experienced financial hardship such as to affect his capacity to support the applicant’s stay and study in Australia.  He stated that he raised the issue of his father’s financial situation because his father retired. He acknowledged that his Student (Subclass 500) visa if not cancelled would have expired on 15 March 2019, and that his father would have expected him to return home about this time. He claimed he has told his father about the cancellations of his enrolment and visa. He further claimed that he has not worked for ‘four to six months’ while waiting on the review outcome, during which time his father has supported him.

18. The applicant advised at hearing that his girlfriend, in India, whom he knew from their school days, and whom he planned to marry, was diagnosed with an auto-immune illness in 2017. He stated that she became critically ill in June 2017 and died in July 2017.  He confirmed that he remained in Australia and worked, for 12 to 18 hours a week at Coles, during the time of her illness. He stated that it would have been culturally inappropriate for him to return to India to be with her during her illness or attend her funeral, because they were not married. He confirmed that he had stopped attending classes before his girlfriend became ill; that his enrolment was cancelled before she became critically ill; and that he had not been so distressed by her illness as to not be able to continue in his paid employment at Coles.

19. The applicant stated that he attended classes ‘at the beginning’, after his arrival in Australia, for about a month, until early December 2016. He advised that he stopped attending before his tuition payment was due, and so his course cancellation was for the reason of non-attendance rather than inability to pay tuition fees. He claimed that he stopped going to classes because he felt lonely and lost in Australia. He provided no evidence such a certificate or letter from a doctor, psychologist or psychiatrist that he was at any time diagnosed with a mental illness such as to prevent him from studying. He acknowledged that he travelled and lived in Canada, alone and when younger, but was not immobilised by loneliness to the extent of not being able to attend his classes in that country. He acknowledged, as noted, that he worked in Australia, at Coles, for 12 to 18 hours a week, during the time he was on a Student visa.

20. The applicant confirmed that he did not approach his course provider in person or by email or letter to seek a deferment of his studies, and that he has never approached the Department to discuss the implications of his changed circumstances for his visa and stay in Australia. He acknowledged that he understood he was supposed to study while on his Student visa. He stated that he didn’t think that there would be consequences ‘so soon’ for his non-attendance. He stated that he thought he would be able stay and work in Australia on his Student visa and enrol in a course sometime in the future.

21. The purpose of a Student visa is not to enable a person to live and work in Australia. The Tribunal does not accept, on the evidence provided, that he has been motivated to study in Australia, or that the circumstances of his non-compliance were beyond his control. The Tribunal finds the extent of the non-compliance, fifteen months on a Student visa while not enrolled in a course, to be significant. The Tribunal further finds that the applicant has not at all times been truthful and cooperative in his dealings with the Department.

22. The applicant claimed at hearing that he wants to remain in Australia for the purpose of obtaining the Master of Information Technology degree that he came to Australia for, in order to avoid disappointing his father and obtain more highly remunerated employment in India. The applicant has a Bachelor of Technology from India and experience working on web design. He has an Advanced Diploma of Computer Systems from Canada. He has vocational level English language skills. The Tribunal accepts that holding a Masters degree confers advantage in the job market in India, and that the applicant’s father would like him to obtain a Masters degree while he is in Australia, and for these reasons the applicant would suffer some financial and emotional hardship from the cancellation of his visa. The Tribunal however notes that the applicant could seek employment based on his existing qualifications. The Tribunal further notes that the applicant’s father is aware of his son’s circumstances. In any event, the Tribunal finds the financial and emotional hardship the applicant would suffer to be the result of his own choices, and not, in itself, to weigh heavily against the visa cancellation.

23. There would be no consequential cancellations. The applicant confirmed at hearing that he has no reason to fear or not want to return to India apart from disappointing his father and the desire for a more highly paid job. The Tribunal has considered that, as the applicant’s visa has been cancelled for breach of condition 8202, he may have to wait for some time to be granted another visa to enter Australia. The Tribunal has also considered the applicant would be unlawful and liable for detention following the cancellation of his visa. There is no information before the Tribunal to indicate that the applicant would not be granted another Bridging E visa pending his departure from the country.

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

    DECISION

25. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Adrienne Millbank
    Member