Nagandla (Migration)

[2018] AATA 3980

Nagandla (Migration) [2018] AATA 3980 (22 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Siva Prasad Nagandla

CASE NUMBER:  1807397

HOME AFFAIRS REFERENCE(S):           BCC2017/4008194

MEMBER:Susan Trotter

DATE:22 August 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 22 August 2018 at 5:50pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – course deferral – family health issues – lengthy period of non-enrolment – job prospects –failure to obtain re-enrolment – 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 12 March 2018 made by a delegate of the Minister for Home Affairs (the Minister) 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 applicant is a 26 year old citizen of India. On 7 July 2016, he was granted a Subclass 573 (Higher Education Sector) visa to study a Master of Information Systems at the University of Southern Queensland. He arrived in Australia in July 2016 and commenced studying the course.

3. On 19 January 2018, a Notice of Intention to Consider Cancellation (NOICC) was forwarded to the applicant, notifying him of the intention to cancel the Subclass 573 visa on the basis that it appeared that he had not complied with a condition of the visa as he had not been enrolled in a registered course of study since 17 March 2017, and seeking the applicant’s comments on the proposed ground of cancellation and any reasons why the visa should not be cancelled.

4. No response was received from the applicant to the NOICC.

5. On 12 March 2018, the delegate cancelled the applicant’s Subclass 573 visa on the basis that the applicant had not complied with a condition of the visa, that is he had not been enrolled in a registered course of study from 17 March 2017, in breach of condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), and on the basis that the grounds for cancelling the visa outweighed the reasons for not cancelling the visa.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 19 March 2018.

7. On 26 July 2018, the Tribunal invited the applicant to attend a hearing before the Tribunal on 14 August 2018 to give evidence and present arguments in relation to his application.

8. On 13 August 2018, the Tribunal received a request to adjourn the hearing scheduled for 14 August 2018 for two weeks ‘Due to some personal problems’ and ‘so that we can organise all the required documents for the hearing’.

9. On 13 August 2018, the Tribunal responded refusing the applicant’s request for an adjournment and indicating that the if the request was maintained, the Tribunal could consider the request further at the commencement of the hearing and, further, that the Tribunal could also consider whether further time should be allowed after the hearing for receipt of any further documents. The request for an adjournment was not maintained at hearing. However, the Tribunal did discuss with the applicant that further time could be allowed after hearing for receipt of further documents if necessary. As canvassed at paragraph 22 of the following Reasons, the Tribunal accepted the evidence of the applicant in relation to his mother’s medical condition at the relevant time and on that basis did not require corroboratory evidence in this regard.

10. The applicant appeared before the Tribunal on 14 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.

11. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    ISSUES

12. Under s.116 of the Act, the Minister may cancel a visa if 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) that the visa holder has not complied with a condition of the visa.

13. In this instance, condition 8202 was attached to the applicant’s visa.

14. Condition 8202 of Schedule 8 to the Regulations, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

    (a)  Be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2);

    (b)  Has not been certified by his or her education provider as not achieving satisfactory course progress as specified: 8202(3)(a); and

    (c)  Has not been certified by his or her education provider as not achieving satisfactory course attendance as specified: 8202(3)(b).

15. 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.

16. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances, including but not limited to matters identified in the Procedures Advice Manual (PAM3) of the now Department of Home Affairs (the Department), ‘General visa cancellation powers’, including:

    (a)  The purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia

    (b)  The extent of compliance with visa conditions;

    (c)  Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members;

    (d)  Circumstances in which the ground for cancellation arose. 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;

    (e)  Past and present conduct of the visa holder towards the Department;

    (f)    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;

    (g)  Whether there would be consequential cancellations under s.140 of the Act;

    (h)  Whether any international obligations would be breached as a result of the cancellation; and

    (i)    Any other relevant matters.

17. It follows that the issues to be determined by the Tribunal are:

    (a)  Does the ground for cancellation exist? and, if so

    (b)  Should the discretion to cancel the visa be exercised?

    CONSIDERATION

18. The applicant’s evidence at hearing included the following:

    (a)  He studied for one semester and passed three subjects and failed one. His mother was ill and that is why he failed the subject.

    (b)  In the next semester (semester 1 of 2017), he sought a leave of absence from his studies so that he could go home and visit his mother but it was not granted.

    (c)  He travelled home to India on 19 June 2017 to visit his mother. He returned to Australia on 1 August 2017.

    (d)  When he was in India, he received an email saying his course was deferred. He agrees that he was not enrolled from 17 March 2017.

    (e)  When queried as to whether he has any compelling need to remain in Australia, he responded that if he goes back to India without fulfilling his desire to study in Australia, his whole family will be disturbed and his career will be destroyed. He wants to be given another chance. He needs to gain knowledge in Australia so he can fulfil his career goals in India. If he cannot study in Australia, he will not be able to get a good job when he returns to India.

    (f)    When queried as to why he would now pursue study in circumstances where he did not gain enrolment in any further course between 1 August 2017 and the date of the hearing, he said he was too depressed during that time but that if given another chance he is confident he will gain a new confirmation of enrolment. He has gathered all the information he needs.

    (g)  When queried, he responded he had not sought any medical assistance for the depression he had because he did not know he could do that. The Tribunal raised with the applicant that it might find it difficult to accept that the applicant had depression for over one year significant enough to stop him studying in circumstances where he had not sought medical assistance. The applicant responded that he was disturbed at the time because his mother was ill but he is alright now.

    (h)  The Tribunal queried the applicant on a number of occasions as to what he had been doing since returning to Australia on 1 August 2017 to the date of hearing, a period of over 12 months. The applicant did not directly respond to this question despite being queried a number of times, other than to say he was depressed/disturbed.

    (i)    He did apply at different colleges for a confirmation of enrolment to allow him to finish his study but he has not been successful.

    (j)    He is asking for another opportunity. If he is given another opportunity he will finish his study in two years and will then return back home.

    (k)   When queried as to the source of his income over the last year, the applicant stated that he had been sent money from his family in India.

    (l)    He finished a Bachelor in Electrical Engineering in India in 2013 and started working for a small company. Because he did not have enough skill, he then investigated overseas study and chose to come to Australia to study.

    (m) If he goes back to India, he will not be able to get a good job and will have to start everything all over again.

    (n)  When he went home to India to visit his mother, she was going to have surgery but that did not happen. She instead took treatment on a long term basis. She could not walk or stand at the time but is a bit better now. She still gets pain.

    (o)  When queried as to whether his mother was well enough so that he was happy to return to Australia in August 2017, he said that she was still under treatment then and was still sick for two or three months after he returned. However his father was there to support her as well so he could go back and concentrate on his studies.

    (p)  The Tribunal again discussed with the applicant that given the applicant had been back in Australia for over 12 months (during seven months of which he still held a student visa) and had not done anything towards further study, it might hold a concern that he has already been given an opportunity to study again but has not done so. The applicant repeated that he tried but could not get enrolled anywhere else.

    (q)  He applied at Holmes College but was told by his lawyer that after June 2017, that college was not giving admissions anymore and after that he was very disturbed but he is now ready to complete his master’s degree.

    (r)   When queried as to whether he had applied to any place other than Holmes College, the applicant said that he was very disturbed and then it was holidays from November 2017 to February 2018 and then his visa was cancelled in March 2018.

    (s)  He did not respond to the NOICC because by the time he received the notice and contacted the lawyer, the time to respond was already up.

    Issue 1 - Does the ground for cancellation exist?

19. The applicant did not dispute that he has not been enrolled in a course of study since 17 March 2017.

20. It follows that the Tribunal finds that there is a ground for cancelling the applicant’s visa under s.116(1)(b) of the Act. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Issue 2 - Should the discretion to cancel the visa be exercised?

21. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in PAM3, ‘General visa cancellation powers’ as referred to earlier in these Reasons.

    The purpose of the applicant’s travel and stay in Australia, and whether the applicant has a compelling need to travel to or remain in Australia

22. The purpose of the visa granted to the applicant was for the applicant, as a non-citizen, to undertake study in Australia. However, the applicant was not enrolled in any course of study from 17 March 2017. The Tribunal accepts that the applicant’s mother was unwell in early 2017 and the applicant understandably returned to India to visit her. The Tribunal accepts the applicant’s evidence in this regard and discussed with the applicant at hearing that on this basis, it did not need further corroboratory evidence of his mother’s illness, and therefore it was not necessary to allow further time for the applicant to obtain further documents from India.

23. The Tribunal is prepared to accept that the applicant’s purpose in travelling to and staying in Australia was and is to study and that the applicant maintains that he still wishes to study in Australia. The Tribunal gives some weight to these matters in the applicant’s favour to not exercise the discretion to cancel the visa. However, the lengthy period of non-enrolment between 17 March 2017 and now, and the fact that the applicant has not been able to successfully obtain a further confirmation of enrolment (despite continuing to hold a student visa until 12 March 2018), leads the Tribunal to doubt whether he would, in the future, obtain confirmation of enrolment and fulfil the original proposed purpose of the visa.

24. The Tribunal also considered whether the applicant has a compelling need to remain in Australia. In response to a query in that regard, the applicant told the Tribunal that if he could not complete his study in Australia, it would ruin his career plans and he would not be able to get a good job when he returned to India. The Tribunal accepts that the completion of successful study in Australia would likely assist the applicant’s job prospects upon returning to India and places some weight on this in the applicant’s favour. However, the Tribunal is not satisfied that this amounts to a compelling need to remain in Australia.

    The extent of compliance with visa conditions

25. The applicant was granted the visa to undertake specified studies in Australia and, as the holder of a Subclass 573 visa, was required to remain enrolled in a registered course of study. He has not done so. He has not complied with the primary condition of the visa granted to him from 17 March 2017 to date, a significant period of time, and has not rectified this situation.

26. The Tribunal considers these matters weigh heavily in favour of exercising the discretion to cancel the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members

27. The Tribunal accepts that a degree of financial, psychological and emotional hardship may be caused to the applicant and his family should the visa be cancelled. This will mean that the applicant will likely have to depart Australia and will have not completed the study he planned to undertake. The Tribunal accepts that the applicant and his family have financially invested in the applicant’s goal of studying in Australia and see study in Australia as furthering his career and giving him an opportunity to obtain a good job in India.

28. The Tribunal places some weight on those likely hardships, which the Tribunal accepts are not insignificant, as weighing against exercising the discretion to cancel the visa.

    Circumstances in which ground of cancellation arose. 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.

29. The summary of the applicant’s evidence earlier in these Reasons traverses the circumstances in which the ground for cancellation arose. The Tribunal accepts that the applicant’s mother was unwell and he understandably sought a leave of absence from his studies and visited his mother in June through to August 2017. It is not clear why the leave of absence was not granted and the applicant’s enrolment was instead cancelled by the university. However, of more concern is that applicant has not gained a further confirmation of enrolment in the over 12 months he has been back in Australia, for over seven months of which he still the holder of a student visa. The Tribunal accepts that the applicant may have been disturbed or depressed because of his mother’s health issues and enrolment issues. However, in the absence of a need to seek medical assistance himself, the Tribunal does not accept that any impact of disturbed mood or depression upon him was so substantial or significant that it of itself prevented him from obtaining further enrolment in the many months following his return to Australia on 1 August 2017.

30. The Tribunal places some weight upon the understandable interruption to the applicant’s study plans that his mother’s health issues caused. The applicant requested one further opportunity. However, the applicant has had over 12 months to pursue study options and has not been successful in obtaining a further enrolment.

    Past and present conduct of the visa holder towards the Department

31. There is no evidence that the applicant had been uncooperative towards the Department other than he did not respond to the NOICC. The Tribunal places some weight on this in the applicant’s favour.

    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

32. If the applicant’s visa is cancelled, he would become an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. He would have limited options to apply for any other visas in Australia. He could also be subject to a three-year exclusion period unless he meets the relevant public interest criteria. However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the discretion to cancel the visa should not be exercised.

    Whether there would be consequential cancellations under s.140

33. There is no evidence that there would be consequential cancellations in this case.

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

34. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

35. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

    Conclusion

36. The Tribunal placed considerable weight on the emotional, financial and psychological hardship that may be caused to the applicant and his family if the visa is cancelled, and acknowledges that health issues of the applicant’s mother have impacted the applicant’s original study plans. However, on balance and considering the circumstances as a whole, the Tribunal considers that the factors weighing in favour of exercising the discretion to cancel the visa, as canvassed in these Reasons, in particular the extended period of non-enrolment and failure to obtain reenrolment, outweigh the matters weighing against cancellation, and the Tribunal finds that the visa should be cancelled.

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

   DECISION

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

   Susan Trotter
   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.