MULKALA (Migration)

[2019] AATA 5479

MULKALA (Migration) [2019] AATA 5479 (26 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Naresh MULKALA

CASE NUMBER:  1807511

HOME AFFAIRS REFERENCE(S):          BCC2017/3720819

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 4:10pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – non-appearance before the Tribunal – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – no compelling need to remain in Australia – 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 15 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 from 28 April 2017 to 11 December 2017 in breach of condition 8202(2). On 20 March 2018, he applied to the Tribunal for a review of that decision.

3. On 17 October 2019, the Tribunal wrote to the applicant and informed him that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to appear before it on 25 November 2019 at 9.00am to give evidence and present arguments relating to the issues arising in his case. The letter informed him that if he did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it or may dismiss his application for review without any further consideration of the application or the information before it.

4. The letter dated 17 October 2019 was sent to the applicant to his email address on that date. The Tribunal did not receive any notification that the email had not been delivered. The Tribunal did not receive the response to hearing invitation form as requested.

5. On 18 November 2019, the Tribunal sent the applicant an SMS message to his mobile telephone reminding him of the hearing on 25 November 2019. On 22 November 2019, the Tribunal sent him another SMS message to his mobile telephone reminding him of the hearing on 25 November 2019.

6. The applicant did not attend the hearing scheduled on 25 November 2019 at 9.00am. He did not contact the Tribunal to explain his non-attendance at the hearing or to seek a postponement of the hearing. In these circumstances, the Tribunal has decided to proceed to make a decision on the review.

7. 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

8. 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?

9. 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).

10. In the present case, the applicant was granted a Student visa on 4 July 2016. This visa was subject to a number of conditions including condition 8202. On 12 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 from 28 April 2017 to 11 December 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.

11. In his response dated 15 January 2018, the applicant provided details as to why he was unable to maintain enrolment in a registered course and comply with condition 8202(2)(a). He also provided a letter of support from his father. The delegate cancelled his Student visa on 15 March 2018. 

12. The applicant has not provided the Tribunal with any supporting documents or submissions.  

13. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 15 March 2018. It refers to records of the Department of Education which indicate that he was not enrolled in a registered course from 28 April 2017 to 11 December 2017. In his response to the NOITCC, he did not dispute the fact that he was not enrolled in a registered course from 28 April 2017 to 11 December 2017. He has not lodged any documents with the Tribunal disputing this.

14. On the evidence before it, the Tribunal is satisfied that the applicant was not enrolled in a registered course between 28 April 2017 to 11 December 2017 and finds accordingly. Therefore, the Tribunal finds that he has breached condition 8202(2)(a) of his Student visa.

    Consideration of the discretion to cancel the visa

15. 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?

16. The applicant was granted a subclass 573 Student visa for the purpose of undertaking a Master of Information Technology degree in Australia. The purpose of his travel and stay in Australia was therefore to study.

17. In his response to the NOITCC, the applicant stated that he came to Australia on 16 July 2016 to study a Master of Information Technology and knows that he would have to work hard and study hard to successfully complete this degree and guide his family in their business. He stated that he is positive he will be successful and make his family proud by completing his degree and helping them in the business.

18. As the applicant did not attend the hearing, the Tribunal was unable to discuss with him whether he is currently studying or whether he has completed any studies in Australia.  

19. The Tribunal is of the view that the applicant has not 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

20. The applicant was not enrolled in a registered course between 28 April 2017 and 11 December 2017. As he did not attend the hearing, the Tribunal was unable to discuss with him whether he is currently enrolled in a registered course and whether he has complied with his other visa conditions.

21. 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

22. In his response to the NOITCC, the applicant stated that he wanted to complete the Master of Information Technology degree and make his family proud. He also stated that he wanted to help his family in the business.

23. The applicant provided the Department with a letter from his father in which he stated that he and his older son were real estate agents and were planning to expand the business. He stated that they needed someone with “strong knowledge” to help “tackle all the problems” and improve the business. He stated that the applicant is the “right candidate” for this role and it would strengthen their bond and make the whole process easier. He stated that, through his studies in Australia, the applicant would gain knowledge and practical skills and he wanted him to make the family proud.

24. As the applicant did not attend the hearing, the Tribunal was unable to discuss with him what other hardship may be caused if his Student visa is cancelled. The Tribunal accepts that he would suffer some economical and emotional hardship if his Student visa is cancelled. The Tribunal accepts that it would also have a negative impact on his family. The Tribunal gives this consideration some weight in his favour.   

    Circumstances in which the ground for cancellation arose

25. In his response to the NOITCC, the applicant stated that when he came to Australia on 16 July 2016 it was the first time he lived in a different country far from his family and he was home sick. He stated that he enrolled in four units in the first semester and was unable to pass any of them. He stated that he became very depressed and unable to perform. He stated that he did not enrol in the next semester as he realised that it was not the right course for him and it was difficult for him to concentrate on his studies. He stated that he did not want to let his family down. He stated that his father and brother wanted him to study business so he decided to get a Master of Business degree. 

26. As the applicant did not attend the hearing, the Tribunal was unable to discuss with him whether he discussed with his education provider the difficulties he was having with his studies and seek some assistance. The Tribunal was unable to ascertain whether he sought the assistance of a student counsellor in relation to the personal difficulties he was having. The Tribunal was unable to find out whether he had approached the Department in relation to complying with his visa conditions and, if not, what his plan was in relation to his non-compliance with his visa conditions. The Tribunal was unable to verify whether he sought the assistance of a migration agent to resolve these problems.

27. The Tribunal accepts that the applicant had difficulty adjusting to living and studying in Australia and found his studies too difficult for him. The Tribunal is of the view that this is not an unusual circumstance and is one that many international students face. The Tribunal does not give this consideration any weight in his favour.

    Past and present behaviour of the applicant towards the Department

28. 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

29. 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

30. 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.

31. 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

32. 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.

    CONCLUSION

33. 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

34. 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.