MITTAKANTI (Migration)

[2020] AATA 721

MITTAKANTI (Migration) [2020] AATA 721 (20 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vishvajeet Reddy MITTAKANTI

CASE NUMBER:  1713045

HOME AFFAIRS REFERENCE(S):          bcc2017/1358333

MEMBER:Gregory Sarginson

DATE:20 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 20 March 2020 at 12:02pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass  573 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – study record – grandfather’s death – mental health – no approach to education provider – one psychological  consultation – no subsequent enrolment or study – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 June 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 was not enrolled in a registered course of study from 20 May 2016 in breach of visa condition 8202; and the delegate was not satisfied that the discretion not to cancel the visa should be exercised in favour of the applicant. 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 11 July 2019 to give evidence and present arguments.

4. Prior to the hearing, the applicant provided the following documents:

   a)    Copy of the delegate’s decision dated 14 June 2017.

   b)    Written statement of the applicant dated 20 June 2017.

   c)    Copy of extract of passport.

   d)    Report of Ms Zhang, psychologist, dated 4 March 2017.

   e)    Offer of enrolment by Group Colleges Australia trading as Universal Business School Sydney (‘UBSS’) dated 26 June 2019 for enrolment in a Masters of Business Administration (‘MBA’) course.  The offer was valid for 30 days from the date of the letter offering enrolment. 

   f)     Death certificate in respect of M. Ram Reddy dated 30 June 2016 issued by Greater Hyderabad Municipal Corporation.  The date of death was identified as 30 May 2016.

5. Prior to the hearing, the Tribunal obtained the following documents:

   a)    A copy of the applicant’s file from the Department of Immigration and Border Protection (as it was then known) that included the Notice of Intention to Consider Cancelation of Visa (‘NOICC’) dated 23 May 2017; and the applicant’s response to the NOICC (including the documents provided by the applicant to the Department in support of the response) dated 26 May 2017.

   b)    Movement records of the applicant.

   c)    Provider Registration and International Student Management System (‘PRISMS’) record from the Department of Education.  A PRISMS record sets out details of registered courses of study enrolled in by an international student.

6. 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

7. 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?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

10. At the hearing, the applicant agreed with the information contained in the delegate’s decision that he had not been enrolled in a registered course of study since 20 May 2016.  The applicant did not dispute that he had failed to comply with condition 8202(2).

11. Rather, the evidence and submissions of the applicant were that the discretion should be exercised in favour of not cancelling the visa.

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 Procedural Instruction ‘General visa cancellation powers’.

    Evidence of the Applicant

14. The applicant was born on 23 February 1992.  His home country is India.

15. The applicant arrived in Australia pursuant to a student visa granted on 28 July 2015.  The stay period of the visa was to 30 September 2017.

16. The applicant was enrolled in a Masters of Planning degree at Western Sydney University.  Prior to arriving in Australia for the purpose of study, the applicant had obtained a Bachelor of Civil Engineering degree in India; and had worked as an engineer in his father’s company for approximately 3 years.

17. The applicant stated that he had a very close relationship with his paternal grandfather who encouraged the applicant to study in either Australia of the United States of America.  According to the applicant, it was his grandfather’s “dream” that the applicant study in Australia.  The applicant’s grandfather encouraged the applicant to study in Australia and after completing his studies return to India and assist his father’s company to expand.

18. The applicant stated that he completed one semester of study in the Master of Planning degree in 2015. He stated that he passed 3 subjects and failed one subject by 1 mark. 

19. The applicant stated he became depressed and upset after failing one subject, because he had previously been a high achieving student.  In second semester the applicant started to avoid attending classes and fell behind with is academic work.  The applicant stated that he felt overwhelmed and that he did not clearly understand the course information.

20. In May 2016 the applicant’s paternal grandfather died.  According to the applicant, his grandfather had been ill for a number of months.  In February 2016, the applicant had wanted to return to India and defer his studies to visit his grandfather.  The applicant stated that he had spoken to an International Student Liaison officer at the North Parramatta campus of Western Sydney University in about February 2016 about returning to India, and explained that his grandfather was ill. 

21. According to the applicant, the International Student Liaison officer asked the applicant to provide medical evidence that his grandfather was ill.  The applicant stated that he did not provide such information to Western Sydney University because he had a difficult relationship with his parents, and the only person he could ask to obtain such information was his younger brother. The applicant stated that he did not believe it was appropriate to ask his younger brother to obtain such medical evidence, as his brother lived in a different city to his grandfather and had upcoming exams.  The applicant did not want to burden his younger brother.

22. The applicant stopped attending classes at Western Sydney University in early March 2016.  The applicant stated that he was repeatedly contacted by the university after he stopped attending classes and failed to pay course fees. 

23. The applicant stated that his grandfather had been paying the course fees and he did not want to ask his grandfather for payment because his grandfather was ill.  The applicant did not want to ask his parents for financial assistance to pay course fees.

24. The applicant stated that he knew Western Sydney University had counselling and support services for international students.  The applicant didn’t know why he did not seek the assistance of such support services.

25. The applicant stated that he was informed by Western Sydney University that his enrolment had been cancelled in about May 2016.

26. The applicant did not return to India for the funeral of his grandfather.  The applicant stated that the reason for this was he believed if he left Australia he may not be able to return, and his younger brother had advised him to remain in Australia.

27. The applicant stated that he became upset and depressed after the death of his grandfather.  In late 2016, a cousin brother arrived from India to console him.  The applicant’s cousin brother advised the applicant to get psychological treatment.  Eventually, the applicant attended Ms Zhang, psychologist. The applicant stated that he recalled getting advice from a migration agent about seeing a psychologist, but could not recall when that advice was given.  The applicant stated that his cousin brother had also recommended he see a psychologist, and the applicant found details of Ms Zhang by performing a Google search on psychologists, and then arranging an appointment.

28. The Tribunal raised with the applicant that Ms Zhang’s report referred to the applicant being upset and depressed because both of his paternal grandparents had died in March 2016.  The applicant stated that this information was incorrect, and that only the applicant’s paternal grandfather had died on 30 May 2016.

29. The applicant has not had any psychological treatment other than the single consultation with Ms Zhang on 4 March 2017.

30. At the end of 2016 and early 2017, the applicant stated that he “felt better” and sought to return to study.  The applicant stated that he was no longer interested in studying for a Master of Planning degree.  According to the applicant, he applied for “a lot of different courses”, but didn’t enrol in any registered courses of study.  The applicant received an offer of enrolment at UBSS for an MBA course in May 2017.  The applicant also received an offer of enrolment from UBSS in respect of an MBA course in June 2019.

31. The applicant was asked why he had not enrolled in a registered course of study since cancellation of his enrolment at Western Sydney University.  The applicant stated that he was not motivated to study due to his depression after his paternal grandfather had died until late 2016 or early 2017; and since cancellation of the visa he had not wanted to enrol because if his application for review of the decision to cancel his student visa was unsuccessful, he would have wasted course fees and expenses with nothing to show for it.

32. The applicant agreed that he could study for an MBA in India or in a country other than Australia.  The applicant stated that if his application was unsuccessful he would either study on his return to India, or seek to study in another country.

33. The applicant stated that if his application for review was successful, he would seek to enrol in the MBA course at UBSS and attempt to complete the course in one year, and then return to India.

34. In respect of his family situation, the applicant stated that his relationship with his mother was now good, but that he and his father had a difficult relationship.

35. The applicant was asked about the hardship that would be caused if the visa remained cancelled.  The applicant stated that his family would be disappointed with him and he would feel as though he had let down his paternal grandfather who had dreamed of the applicant successfully obtaining a degree in Australia.  Further the applicant stated that if he returned to India without a degree he and his family would have “wasted a lot of money”.

36. The applicant was questioned about how he had financially supported himself during his stay in Australia. The applicant stated that he had performed a series of casual jobs when he needed money to pay for expenses such as the rent.  Such work included working at Flemington Markets.  The applicant stated that he earned approximately $300 per week from such jobs.

37. The applicant stated that he had not returned to India, or travelled to any other country, since his arrival in Australia.  This evidence was consistent with the information contained in the movement records. There was no adverse information contained in the movement records.

38. The PRISMS record stated that the only registered course of study that the applicant had been enrolled in was the Masters of Planning course commencing 20 July 2015, with duration of approximately 2 years.  The information contained in the PRISMS record was consistent with the evidence given by the applicant and the hearing.

39. In accordance with the procedure under s 359AA of the Act, the Tribunal raised with the applicant that the information contained in the PRISMS record would be the reason or part of the reason for affirming the delegate’s decision because the applicant had not undertaken any studies since cancellation of his enrolment on 20 May 2016 which was inconsistent with compliance of the visa condition that the applicant be enrolled in a registered course of study; and inconsistent with the applicant being in Australia genuinely for the purpose of study.

40. The applicant was informed that he could comment and respond to the information, or seek additional time to comment and respond.  The applicant stated that he was not seeking additional time to comment and respond.

41. The comments and response of the applicant to the information were that the applicant wanted “another chance” to complete a degree, and upon completion he would return to India.

42. The Tribunal also raised concerns about the evidence given by the applicant at the hearing in respect of the applicant failing to seek assistance from his education provider if he was struggling with his studies and concerned about the health of his grandfather (the applicant’s grandfather having died a short period after the applicant’s enrolment had been cancelled); and that the applicant had only received treatment on one occasion (by Ms Zhang) in respect of his asserted depression. The Tribunal also raised concerns about the applicant’s failure to enrol in any registered course of study after the cancelation of his enrolment on 20 May 2016.

43. The applicant responded to the concerns by stating that he had only 1 month from being told his grandfather was in hospital to being informed of his death.  The applicant stated “one thing led to another” and it was not until March 2017 that he sought treatment from Ms Zhang in respect of his psychological condition.  The applicant regretted not seeking or obtaining treatment earlier.  In respect of failing to enrol in further registered courses of study, the applicant stated that he only realised he could continue to study after his student visa had been cancelled after he sought advice from a migration agent when lodging his appeal to the Tribunal from the delegate’s decision.  The migration agent told him that it may be a significantly long period of time before the applicant received a hearing date in the Tribunal.  The applicant stated that his savings were diminished and he did not want to invest in enrolling in a course and paying course fees if his application to the Tribunal may ultimately be unsuccessful.

44. The Tribunal gives consideration to the relevant factors regarding the exercise of its discretion as follows:

    The Purpose Of The Visa Holder’s Travel And Stay In Australia, Whether The Visa Holder Has A Compelling Need To Travel To Or Remain In Australia

45. The Tribunal accepts that the applicant’s original purpose of travel and stay in Australia was to study for the Masters of Planning degree.  The oral evidence of the applicant was that he had completed the first 3 subjects in the course, and failed one subject.

46. The Tribunal gives this factor some weight in favour of exercising the discretion in favour of not cancelling the visa.

    The Extent Of Compliance With Visa Conditions

47. The applicant’s enrolment at Western Sydney University was cancelled on 20 May 2016.  The applicant did not enrol in any further registered course of study.  The applicant did not enrol in the MBA course at UBSS he had received offers for in May 2017 (referred to in the delegate’s decision at page 5); and in June 2019. 

48. The applicant’s failure to enrol in any registered course of study after 20 May 2016 is inconsistent with the visa condition of a student visa that the holder of the visa must be enrolled in a registered course of study.  The breach of the condition is lengthy.

49. The applicant explained the breach by stating that he was psychologically unwell for a number of months due to grieving for his late grandfather.  The report of Ms Zhang opines that the applicant “may” have met the criteria for an Adjustment Disorder from shortly after arriving in June 2015; and that he experienced “acute anxiety and depression” that caused the applicant to be absent to his studies “throughout much of 2016”.

50. However, Ms Zhang also noted that the applicant had “reconnected with his support system in India” and “recognised the importance of ongoing management of his mental health”. Ms Zhang also “recommended” the applicant “re-engage in his studies” as “Re-engagement with long term goal is a strong predictor of positive mental health and likely to assist him with his recovery”.

51. The Tribunal accepts that the applicant had some mental health issues in late 2015 and in 2016 arising from a combination of facts including difficulty in adjusting to studying in Australia; disappointment at failing a subject; concern over his grandfather’s health; and grief over the death of his grandfather when he passed away.  The applicant also failed to pay course fees.

52. However, weighed against this is that the applicant did not seek any significant assistance from the support services available at Western Sydney University when he was enrolled; did not seek medical assistance for his mental health issues before or after his single consultation with Ms Zhang; and did no enrol in any registered courses of study after his one treatment by Ms Zhang, despite telling her that he intended to return to study and her advice that he should do so.

53. The applicant also had the ability to approach family members to support him to pay course fees irrespective of his reluctance to do so, in circumstances where an international student studying in Australia is obliged to pay course fees as a condition of enrolment.

54. The Tribunal gives the applicant’s failure to remain enrolled in a registered course of study; and failure to enrol in a registered course of study after cancellation of enrolment in the Masters of Planning degree on 20 May 2016 significant weight towards cancelling the visa.

    Degree Of Hardship That May Be Caused (Financial, Psychological, Emotional Or Other Hardship)

55. The Tribunal accepts that cancellation of the visa will cause a degree of hardship in that the applicant’s family will be disappointed the applicant has not completed studies in Australia; and the applicant will return to his home country without achieving any academic qualifications in Australia, in circumstances where the applicant’s family expended monies to pay course fees in the Masters of Planning degree and gave financial support to the applicant.  Further, the Tribunal accepts that the applicant will feel upset due to his belief that his late grandfather’s ambition was for him to study in Australia, and he has not successfully completed a registered course of study.

1. However, weighed against this is that the applicant has stated that he can study for an MBA in India or another country, and is likely to adopt this course of action if the visa is cancelled.

2. Further, the applicant has chosen not to further enrol in registered courses of study so as to not expend further course fees awaiting the decision on his application for review, rather than enrol in the MBA course at UBSS to which he has been offered enrolment and re-engage with studying.

3. The Tribunal does not accept that in all the circumstances of the matter the degree of hardship that may be caused by cancellation of the visa is significant, and gives this factor little weight towards the visa not being cancelled.

   Circumstances In Which Ground Of Cancellation Arose. If Cancellation Is Being Considered Because Of Relationship Breakdown, Whether The Relationship Has Broken Down As A Result Of Family Violence. The Guidelines Indicate That As A General Rule, A Visa Should Not Be Cancelled Where The Circumstances In Which The Ground For Cancellation Arose Were Beyond The Visa Holder’s Control

4. The circumstances in which the applicant ceased to be enrolled on 20 May 2016 are that he was, according to Ms Zhang, suffering from a mental health condition from late 2015 to 20 May 2016 due to difficulties in adjusting to studying in Australia and additionally (according to the applicant’s evidence and referred to by Ms Zhang) his mental health condition was exacerbated by concern for his paternal grandfather’s health which led to failure to attend classes and failure to pay course fees. 

5. The applicant’s enrolment was cancelled prior to the death of his grandfather so grief regarding the death of his grandfather is not a circumstance in which the ground of cancellation arose, although it is relevant to the circumstances in which the applicant failed to enrol in another registered course of study prior to cancellation of the visa.

6. While the ill health and death of the applicant’s grandfather were beyond control of the applicant, the applicant had the ability to seek assistance and support from his education provider regarding his mental health issues prior to the cancellation of his enrolment; and the ability to seek treatment for such issues.  Further, after cancellation of enrolment, the applicant had the ability to enrol in registered courses of study (particularly in respect of the MBA course at UBSS that he had received offers of enrolment) and seek medical treatment for any continuing mental health issues that affected his ability to study.

7. The Tribunal gives this factor little weight towards the visa not being cancelled.

   Past And Present Behaviour Of The Visa Holder Towards The Department

8. The applicant responded to the NOICC and engaged with the Department.  The Tribunal gives this factor some weight in favour of the visa not being cancelled.

   Whether There Would Be Consequential Cancellations Under S.140

9. This factor is not relevant.

   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

10. The applicant’s evidence was that if the visa was cancelled he would return to India to study an MBA; or seek to study in another country.

11. If the visa remains cancelled, the consequence of cancellation will be that the applicant will be obliged to leave Australia within the stipulated period or be liable for mandatory detention.  There may also be limits on the ability of the applicant to apply for further visas.  However, this is the intended operation of the provisions.

12. The Tribunal gives this factor little weight towards the visa not being cancelled.

    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

13. There is nothing in the applicant’s evidence to suggest that cancellation of the visa would cause breach of Australia’s international obligations as a result of the cancellation.

    If It’s A Permanent Visa, Whether The Former Visa Holder Has Strong Family, Business Or Other Ties In Australia

14. This factor is not relevant as a student visa is a temporary visa.

    Any Other Relevant Matters

15. There are no other relevant matters.

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

    DECISION

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

    Gregory Sarginson
    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.