Mukesh Mittu (Migration)

[2020] AATA 4766

Mukesh Mittu (Migration) [2020] AATA 4766 (14 July 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Mukesh Mukesh Mittu

CASE NUMBER:  2001924

DIBP REFERENCE(S):  BCC20194985108

MEMBER:  Peter Newton

DATE AND TIME OF

ORAL DECISION AND REASONS:         14 July 2020 at 1:33 pm (NSW time)

DATE OF WRITTEN RECORD:                4 August 2020 PLACE OF DECISION:  Sydney

DECISION:  The Tribunal affirms the decision under review.

Statement made on 4 August 2020 at 3:23pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –applicant has not been enrolled in a registered course of study – breached condition 8202 – experiencing depression –no compelling need to remain in Australia– decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

APPLICATION FOR REVIEW

1. This is an application for a review of a decision dated 28 January 2020 (Department’s Decision) made by a delegate of the Minister for Home Affairs to cancel the applicant’s subclass 500 (student) visa under section 116(1)(b) of the Migration Act 1958 (Act).

1. At the hearing on 14 July 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The delegate cancelled the visa on the basis that in breach of condition 8202(2) (a) imposed on the applicant’s visa, the applicant had not been enrolled in a registered course of study since 4 September 2018. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

1. The applicant appeared before the Tribunal on 14 July 2020, via telephone, to give evidence and present arguments. The Tribunal hearing was conducted by telephone. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the Covid-19 pandemic. The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone.

1. The Tribunal is satisfied that the applicant heard and understood the outline given to him at the commencement of the hearing as to how the hearing would proceed, which included an outline of the issues to be considered in determining whether the visa should be cancelled if the Tribunal is satisfied that the applicant had not complied with condition 8202 attached to his visa. The Tribunal is satisfied that the applicant heard and understood the questions asked during the hearing, which he answered. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

1. During the hearing the applicant said that he can read English. As indicated the applicant represented himself at the hearing and communicated in English.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 (Regulations). If the applicant has breached that condition, under section 116(1) of the Act, the visa may be cancelled.

1. Condition 8202, as it applies in this case, requires that the applicant:

a.   be enrolled in a full-time registered course: 8202(2)(a);

b.    has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and

c.     has not been certified by his or her education provider as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

1. In the present case, the applicant’s visa was cancelled on the basis that the applicant has not been enrolled in a registered course of study since 4 September 2018, and therefore has not complied with the requirements of subclass (2)(a) of condition 8202.

1. During the hearing the applicant accepted that he had read the Department’s Decision and that he has not been enrolled in a registered course of study since 4 September 2018.

1. On the evidence before the Tribunal, the applicant has not been enrolled in a full-time registered course of study since 4 September 2018. Accordingly, I find that the applicant has not complied with condition 8202(2)(a).

Consideration of the discretion to cancel the visa

1. Having found that the applicant has not complied with the condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act of 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”.

·     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

1. The Department’s Decision records, and there is no dispute, that the applicant arrived in Australia on 12 January 2015. The applicant arrived on a student subclass 572 visa. The Department’s Decision records and the applicant accepts that on 19 February 2018 the applicant was granted a student (subclass 500) visa for the purpose of completing a Bachelor of Business course and a General English (Beginner to Advanced) course. The Department’s Decision records, and the applicant accepts, that he completed the general English course on 19 February 2018. The applicant says he commenced studying the Bachelor of Business course. He says that he did not complete studying that course and he accepts that his enrolment was cancelled by the education provider (Holmes Institute) on 4 September 2018 due to cessation of studies.

1. During the hearing the applicant said that he has not subsequently enrolled in a registered course of study and he has not since resumed studying.

1. There can be no dispute that the purpose of the applicant’s study and stay in Australia is for the purpose of study. The evidence establishes that the applicant’s enrolment in a registered course was cancelled on 4 September 2018, he has not subsequently enrolled in a registered course of study and he has not subsequently resumed studies in Australia. The applicant has not provided to the Tribunal a letter of offer from any education provider for a course of study. There is no evidence that he has applied to any education provider to be enrolled in a course of study.

1. During the hearing the applicant indicated that he had completed an Advanced Diploma of Hospitality Management course on 8 October 2017. It appears that this course of study was completed under the student (subclass 572) visa that had been granted to the applicant. During the hearing the applicant said that he completed the general English course on 19 February 2018. The applicant has not completed any course of study since 19 February 2018. He has not been enrolled in a course of study since 4 September 2018. Accordingly, I am satisfied that the purpose of the applicant’s stay in Australia is no longer aligned with the purpose of study as required by his student

visa. I give this consideration some weight against the applicant and in favour of cancelling the visa.

·     The extent of compliance with visa conditions

1. Condition 8202 is a mandatory condition applying to student visas, which obliges visa holders to remain enrolled in a course of study and, depending on the course, either meet attendance requirements or meet academic progress requirements.

1. Student visas are granted for the purpose of studying towards, and achieving, an educational qualification in Australia. The student visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia. In order to be granted a student visa, the visa holder’s primary intention must be to study, maintain enrolment, attendance and course progress, in a Commonwealth register of institutions and courses for overseas students (CRICOS) registered course.

1. On 19 February 2018 the applicant was granted a student (subclass 500) visa for the purpose of completing a Bachelor of Business course and a General English (Beginner to Advanced) course. The applicant completed the General English course on 19 February 2018.

1. The applicant says that he commenced studying the Bachelor of Business course, however did not complete the course. His enrolment in the Bachelor of Business course was cancelled by the education provider on 4 September 2018 due to cessation of studies. That is, the applicant’s enrolment in the Bachelor of Business course was cancelled almost seven months after the applicant was granted a student (subclass 500) visa. As the applicant has failed to maintain enrolment in a registered course of study, he is in breach of condition 8202(2) (a). The applicant breached the condition of the visa with seven months of the visa being granted to him. I give this consideration some weight against the applicant and in favour of cancelling the visa.

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

1. During the hearing the applicant said that if the decision of the Department of Home Affairs is affirmed he does not want to return to his home country because his parents are elderly. He said that he promised his parents that he would complete the studies in Australia. He indicated that he does not wish to return to his home country because he will disappoint his parents who are elderly. I understand that the applicant feels that this disappointment will burden his parents. I pointed out to the applicant that he had completed the Advanced Diploma of Hospitality and Management course and the General English (Beginner to Advanced) course. The applicant said that his main focus was on the Bachelor of Business course.

1. The applicant said that he has supported his wife in Australia financially. The applicant indicated that his wife is from India. He indicated his wife held a student visa and is now on a bridging visa.

1. During the hearing the applicant said that he was unable to continue with his Bachelor of Business studies because he became depressed. He indicated that he consulted a doctor who prescribed him medication. The applicant indicated that he took the medication and he indicated that he is not getting treatment now. He said that he feels good.

1. I find that if the decision of the Department of Home Affairs is affirmed the applicant would suffer a degree of hardship and this hardship comprises psychological and emotional hardship in the form of the disappointment in not filling the expectations of his parents, the burden imposed upon his parents for not completing the Bachelor of Business course and some financial hardship associated with the failure to complete the Bachelor of Business course, which has not been quantified.

1. I was concerned about the applicant’s stated history of depression. As stated, the applicant indicated that he has received medical treatment in the past, and he is not receiving treatment now because “I feel good”. I am satisfied the applicant will be able to emotionally deal with a decision by the Tribunal if it affirms the Department’s Decision. The applicant’s evidence indicates that his previous depression has been resolved. He has access to medical treatment. His evidence indicates that he continues to live in Australia with his wife and has the support of his wife.

1. As I find that a cancellation of the applicant’s visa may result in some psychological, emotional and financial hardship, I give this consideration some weight in favour of the applicant and against cancelling the visa.

·     The circumstance in which the grounds of cancellation arose

1. During the hearing the applicant said that after completing the General English course on 19 February 2018 he commenced studying the Bachelor of Business course. He said that he went through depression. He indicated that he consulted a doctor. He received medication. He said that he was unable to sleep. He said that it was because of the depression and his inability to sleep and the effects of his medication that he was unable to study. The applicant indicated that he had medical evidence to support this. The applicant did not provide that medical evidence to the Tribunal. Notwithstanding this, I accept the applicant’s evidence that he was suffering from depression, receiving medication and was unable to continue with his studies due to depression, inability to sleep and the medication he was on. The applicant said that he is no longer receiving treatment. He said this is because “I feel good”. There is no evidence of when the applicant’s condition improved.

1. The applicant accepted that on 6 January 2020 he received a notice of intention to consider cancellation of his visa from the Department of Home Affairs. He accepted that he did not respond to that notice of intention to consider cancellation. He said that this was because at the time he received it he was on “pills” and at the time he was “not in my senses”. There is no evidence that the applicant informed the education provider of his depression.  There is no evidence that he sought to defer his studies. Notwithstanding that, I accept the applicant’s evidence. I consider that a responsible and genuine student experiencing depression would notify the education provider. Nevertheless, the applicant has given evidence of the circumstances in which the ground for cancellation arose, and I give this evidence some weight in favour of the applicant and against cancelling the visa.

·     Past and present behaviour of the visa holder towards the Department

1. There is no information that the applicant has been unco-operative with the Department of Home Affairs. I expect all visa holders to be co-operative towards the Department of Home Affairs. It is what is required and expected of visa holders. I do not consider the applicant should be given credit for not being unco-operative with the Department of Home Affairs. The applicant accepts that he did not comply with the notice of intention to consider cancellation. He says that this was because he was taking

pills and he was “not in my senses”. Overall and on the evaluative exercise I am required to undertake, I regard these considerations as neutral.

·     Whether there would be consequential cancellations under section 140

1. There are no dependent visa holders. Accordingly, this factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

·     Whether there are mandatory legal consequences, such as 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

1. If the Tribunal affirms the decision to cancel the applicant’s visa, the applicant will be an unlawful non-citizen and may be liable for detention under section 189, and removal under section 198 of the Act if he does not voluntarily depart from Australia. Additionally, the applicant will be subject to section 48 of the Act, which means that he would have limited options to apply for further visas in Australia. He would also be subject to public interest criterion 4013, which may prevent him from being granted particular temporary visas for a specific period.

1. The Tribunal accepts that there will be mandatory legal consequences to the applicant if it affirms the decision to cancel the applicant’s visa. However, these consequences are the intended consequence of a visa holder’s failure to comply with the terms of a visa. Accordingly, on the evaluative exercise I am required to undertake, I regard this consideration as neutral.

·     Whether any international obligations, including non-refoulement and best interests of the children as primary consideration, would be breached as a result of the cancellation

1. The circumstances of this case are not such that would engage Australia’s international obligations, and the cancellation of the visa would not lead to a breach of Australia’s international obligations. Accordingly, this factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

·     If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. This factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

·     Any other relevant matters

1. The applicant says, and I accept, that he experienced depression and he received medication for his depression which inhibited his abilities to complete the Bachelor of Business Course and respond to the notice of intention to consider cancellation. The applicant says that he is no longer receiving treatment because he feels good. The applicant did not provide to the Tribunal any evidence about when he ceased taking medication and when he ceased experiencing depression.

1. The evidence establishes that he was experiencing depression or receiving medication for depression as at 6 January 2020. He says that he wishes to resume studying a Bachelor of Business course. He has not provided any evidence of making

any application to an education provider for enrolment in a Bachelor of Business course. I consider that a genuine applicant for review of a decision made by the Department of Home Affairs to cancel a student visa on the basis that an applicant has not been enrolled in a registered course since 4 September 2018 would come to a hearing of the application for review with evidence of steps taken to enrol in a registered course for the purpose of resuming studies. There is no evidence the applicant has taken any steps to enrol in a registered course of study since his student visa was cancelled. This indicates to me that the applicant is not ready to resume studies and his continuing stay in Australia is no longer aligned with the purpose of study. On the evaluative exercise I am required to undertake I give this consideration some weight against the applicant and in favour of cancelling the visa.

Conclusion

1. Considering the circumstances of this case as a whole, the considerations I have assessed against the applicant and in favour of cancelling the visa outweigh the considerations I have assessed in favour of the applicant and for granting the visa. Considering all the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s student (temporary) (class TU) (subclass 500) visa.

Supplementary Note

1. After I delivered my oral statement of reasons and decision and before I closed the hearing on 14 July 2020, the applicant said that I had found that after the visa was cancelled he did not resume studies. He said he was not able to resume studies after his visa was cancelled. I said I would record that in my decision but it did not change my decision.

Peter Newton Member