Namshagari (Migration)

[2022] AATA 5260

Namshagari (Migration) [2022] AATA 5260 (2 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Praveen Kumar Namshagari

REPRESENTATIVE:  Mr Bimal Bhattarai (MARN: 9685736)

CASE NUMBER:  2206567

HOME AFFAIRS REFERENCE(S):          BCC2021/333593

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         2 November 2022 at 10:45 am (NSW time)

DATE OF WRITTEN RECORD:                23 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 23 March 2023 at 1:23pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant and largely unexplained period of non-enrolment – medical evidence – study history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

APPLICATION FOR REVIEW

Introduction

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 May 2022 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under Sec 116(1)(b) the Migration Act 1958 (the Act).

2. At the conclusion of the hearing on 2 November 2022, the Tribunal made an oral decision to affirm the delegate’s decision and gave an oral statement of the reasons for it.

3. What follows is the written record of those reasons.

   PROCEDURAL ASPECTS, A SUMMARY OF WHAT TOOK PLACE BEFORE THE DELEGATE

4. The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202(2)(a) in that he had not been enrolled in a registered course of study during the period from 17 August 2020 to 21 February 2022, a period of about 18 months. The visa, which had been granted to the applicant on 22 July 2020, replaced an earlier Student TU-500 visa granted to him on 19 January 2019. Both visas were subject to condition 8202, among other conditions.

5. On 16 March 2022 the delegate sent to the applicant a Notice of Intention to Consider Cancellation of his visa (the NOICC) and invited him to comment on a possible breach of condition 8202(2)(a) arising from his non-enrolment. The applicant responded to the NOICC on 22 March 2022 by forwarding an email to the delegate in which he said that he had personal issues in the form of a property dispute within his family and that he had contracted COVID in December 2021, which required him to isolate for a period of about two weeks.

6. There was no suggestion in his response to the NOICC that he had complied with condition 8202(2)(a) arising from the asserted period of non‑enrolment.  He went on to say in the response that he wanted another chance to complete his studies in Australia before he returned home to India.

7. In addition to the response the applicant provided some other documents to the delegate among them being a medical certificate dated 17 March 2022 from his general practitioner, Dr Sukhwinder Randhawa. He also provided Confirmation of Enrolments in a Hospitality package at the Queensford College consisting of a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management the combined duration for which is about two years, with the CIV starting in March 2022.

8. In addition, he also provided a Certificate of Completion relating to a Certificate III in Individual Support (Ageing) at the Ambition Institute, a course which he said he studied from about September 2019. It is common ground in this case that the course at Ambition was not a registered CRICOS course.

   Procedural aspects, the applicant’s documentary case and hearing in the review

9. On 5 May 2022 the applicant filed his Review Application. It is therefore within time.

10. The issues on the review are whether the ground for cancellation identified by the delegate is made out and, if so, whether the visa should be cancelled.

11. The applicant has not fully engaged in the review process in that he did not respond to the Hearing Invitation, did not provide any further documents in support of his review case and, indeed, did not indicate whether he intended to appear at the telephone hearing on 2 November 2022.

12. The applicant did in fact participate at the hearing and gave oral evidence. Mr Bhattarai, his Registered Migration Agent, also attended the hearing, made some oral submissions at the end of the evidence and otherwise assisted the applicant from time to time during the course of his evidence.

13. The applicant gave his evidence in English. He appeared to me to have a reasonably good understanding of the language. Whilst I can accept much of what he has said regarding his academic history in Australia there are aspects of it which I am quite unable to accept.

14. As earlier indicated, the applicant provided no documents in support of his review case preferring to rely solely on the documents which he had put before the delegate in response to the NOICC.

15. I have had access to an updated PRISMS record relating to the applicant’s academic history in Australia together with a Movements Details record. The information in these records was discussed with the applicant at the hearing and is not relevantly in dispute. I have also seen the papers in the Department’s merged file.

16. For the reasons which follow the tribunal has concluded that the delegate’s decision to cancel the applicant’s visa should be affirmed.

    The first issue; has the ground for cancelation been made out?

17. There is no issue that the subject visa was granted to the applicant on various conditions, including condition 8202(2)(a) which relevantly required him to be enrolled in a full-time registered course of study. The Movements Details record confirms as much.

18. The delegate referred in the NOICC to the fact that the PRISMS record indicated that the applicant had not been enrolled in a registered course of study from 17 August 2020 to 21 February 2022 and that he had therefore not complied with condition 8202(2)(a). He was asked to respond to the NOICC which he did on 22 March 2022.

19. In his response to the NOICC the applicant accepted, in effect, that he failed to comply with that condition. This is the position he took before the delegate and there is nothing in his oral evidence in support of his review case to suggest the contrary.

20. In any event, the documentary and other evidence clearly establishes that his enrolments in the Hospitality package at the Alpha Institute were cancelled for non-payment of fees on 17 August 2020 and that he remained unenrolled in a registered course of study from that time until he enrolled in the same Hospitality package at Queensford College on 21 February 2022. While both packages consist of the same courses, namely a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management, the package at Alpha was slightly longer in duration.

21. This being so, non‑compliance with 8202(2)(a) is clearly established and the power to cancel the visa under Sec 116(1)(b) is enlivened.

    The second issue; should the visa be cancelled?

22. Although there are no prescribed matters which the Tribunal must consider when reviewing a decision to cancel a visa under section 116 of the Act, there are various factors which are in practice frequently referred to including those in the Procedural Guidelines.

23. The delegate notes in his reasons for cancelling the visa that the evidence before him in the form of the PRISMS record clearly established a long period of non-enrolment in a registered course and that there had been a failure to comply with condition 8202(2)(a). He considered the documentary evidence which the applicant has provided, including the medical certificate, academic records relating to a Certificate III in Individual Support and the COE’s for the Hospitality package at Queensford.

24. In his response to the NOICC the applicant mentions that he had some family property disputes he became involved in but did not say exactly what these consisted of or for how long they existed. He gave some further evidence about this today which I will come back to later in these reasons.

25. In addition to that he also referred to COVID which he says occasioned stress because of the lockdown, led to changes to the way he studied and that he was not able to focus on his study. He also says that he tested positive for COVID for which he had to take medication and rest. He says he took time off from his work and study.

26. I am prepared to accept there were property issues within his family which apparently remained unresolved in India for a time and that these would have been a worry for him. In his oral evidence he said they were not finally resolved until June or July 2022 but in his NOICC response letter, written in March of that year, he seems to be suggesting that they had already resolved. His evidence about these issues was very imprecise, inconsistent and is, I think, too unreliable to be acted on. I do not accept that these issues lasted for as long as he says they did.

27. In his NOICC response he goes on to assert that he was mentally disturbed because of those things, that is his family issues and COVID, and that he was seeking help in relation to them. Again, this evidence is vague and to make matters worse he is not qualified to give a medical opinion on these things. He does attach to his undated letter the certificate from Dr Randhawa which states that he had been under a lot of stress for the past 18 months due to issues with his family which were complicated because of the lockdown and his inability to go back to India (presumably to help sort them out) and that he was not able to complete his studies on time because of this.

28. I am quite unable to accept evidence that the Randhawa certificate establishes that the applicant was suffering from a depressive disorder or some other recognised medical condition which affected his abilities to engage in productive study at any relevant time. The certificate is cryptic, to put it mildly, it does nothing more than recite a given history and it falls well short of establishing that the applicant was suffering from such a condition at any stage let alone that he was unable to study because of it.  

29. The applicant goes on in his response letter to say that he is now in good health, wants to continue with his course and wants his visa to enable him to do that, that his intention was to start the course again not only to fulfil his visa conditions but also to pursue his dream career which, he says, is in the hospitality sector.

30. The delegate notes in his reasons for cancelling the visa that the evidence before him in the form of the PRISMS record clearly established a long period of non-enrolment in a registered course and that there had been a failure to comply with condition 8202(2)(a). He considered the documentary evidence which the applicant has provided, including the medical certificate, the Certificate III in Individual Support and the COE’s for the Hospitality package at Queensford.

31. Turning to the applicant’s oral evidence today he accepts that he initially came out here on a visitor’s visa in December 2017 when he was about 27 years of age. He went back to India on two occasions during 2018 according to the Movements record, details which he has confirmed.

32. As mentioned earlier the applicant was granted a Student (Temporary) (Class TU) 500 visa to study a Diploma of Business (DOB) in January 2019. This visa was also subject to condition 8202.

33. In his evidence he said that he started work in Australia shortly after he arrived here, first on a casual basis, then on a part-time basis and more recently on a full-time basis. He accepts that his enrolment in the DOB was cancelled for non-payment of fees on 1 April 2019. It appears that he did not actually engage in any studies in this course given the short period of time involved, something in the order of two months.

34. He went on to say that he enrolled in the Certificate III in Ageing Support at the Ambition Institute later during 2019. He was vague as to when he began studies in it but he ultimately said, or at least this is what I think he was saying, that it would have been during 2019. He was also vague about when he finished it but it seems to have been towards the end of 2019. I have not seen a COE for the CIII because it is not a registered CRICOS course and the Statement of Results for it, although confirming that he completed the course, do not indicate the duration of his study.

35. I am unable to say on the evidence led whether the applicant knew that the CIII was a non-registered course. He told me that he took some advice at the time and for that reason, and his previous enrolment history, it seems to me more probable than not that he would have known but, in any event, I did not see any need to investigate this aspect of his case.

36. Nor are there any COEs for the Hospitality package at Alpha. It is thus difficult to know when he enrolled in it but I gather that it would have been towards the end of 2019 as the CIV had a start date of 6 January 2020, according to PRISMS. He told me that he only studied the CIV for about a month before his enrolment was eventually cancelled for non-payment of fees on 17 August 2020.

37. As noted earlier he was granted the subject Student visa in July 2020. This visa was apparently granted to enable him to study the package at Alpha. I have not seen his application for this visa nor any other documents which he presumably provided to the Department in support of it.

38. He appears to have been working on a casual or part-time basis in August 2020. He did nothing to re-enrol in a registered course from August 2020 to 21 February 2022 and only did so after the Department sent an email to him on 17 February 2022 asking for his contact details. He realised when he got this email that the Department was wanting to correspond with him in relation to his visa and I infer that he would almost certainly have known that he had to be enrolled in a registered course to have any hope of retaining it. So, on 21 February 2022, some 18 months after his enrolments at Alpha were cancelled, he enrolled in the very same Hospitality package at Queensford.

39. According to PRISMS, the Queensford package has an expected duration of two years, the CIV commenced in March 2022 and is due to finish in July 2023 while the Diploma is due to commence in September 2023 and to finish in March 2024.

40. He gave evidence today about his progress in the CIV. I was by no means convinced with what he said about it. He said he had been studying the CIV since March 2022, that he had finished four units in the first term and was studying another four units in the second term. When asked whether he had passed any of them he said he was not sure but went on to say that the units he was now studying were not the same units he studied in the first term. I interpret this evidence to be that he has made some progress to date in the CIV but it is hard to know what exactly that is. There is no interim transcript of his results in this course something which I find to be more than a little odd given his evidence that he has been studying the CIV since March of this year.

41. During the hearing Mr Bhattarai asked for more time to provide an interim transcript for the CIV but I declined to permit him to do this. The applicant has had ample opportunity to provide this transcript long before now, he has not heeded Tribunal requests to provide his documentary case in a timely manner, indeed has not heeded them at all, and has not explained why he has not done so. A transcript of results from a reputable education provider such as Queensford would have been readily available.

42. Exactly what his progress has been in the CIV I cannot say. He appears to be studying in the course but whether he is on track to finish it on time is another matter. I accept his evidence that he has made some progress in it even though he has not provided any record of having been formally assessed as competent in any of the four units he says have been completed.

43. When one comes to look at the question of whether as a matter of discretion the applicant’s visa should be cancelled there are various factors which need to be considered. Having read the delegate’s reasons I can indicate at the outset that I broadly agree with the way in which he resolved the discretionary aspects arising on the information in front of him.

44. There are some aspects which the delegate may have overlooked or not come to grips with which I will mention in a moment. 

45. On any view of the evidence led in this case there has been extensive non-compliance with condition 8202 in that the applicant has not been enrolled in a registered course of study for a period of about 18 months and only became enrolled in such a course after he realised that the Department was on to him.

46. During those 18 months he has been working mostly on a part-time basis, it would appear. He said that he began full-time work as a food processor in Arndell Park since June of this year. If so, one wonders how he can devote sufficient time to engage with his studies in a course such as the CIV. His classes in this course are now conducted face to face, or at least this is what he has told me.

47. I am troubled by this sort of evidence, having to reconcile his work activities in Australia with his study commitments in the CIV. Moreover, for at least part of this prolonged period of non-enrolment, he was working (he says) on a part-time basis and he has not suggested, either in his review case or in his response to the NOICC, that he was having any difficulty doing so.

48. The applicant reiterated in his oral evidence that he had been having to contend with family issues during this non-enrolment period. This may be so but these do not take him very far. The evidence falls well short of establishing to my satisfaction that these issues, whatever they consisted of, impacted on him in such a way and to such an extent as to compromise his ability to engage in productive study. There is just no acceptable evidence led to this effect. The Randhawa certificate does not convince me that the applicant could not study productively during this period.

49. Ordinarily in a case such as this the Tribunal requires convincing evidence from an appropriately qualified psychologist or other medical practitioner who has specialist medical knowledge and who can properly diagnose these conditions, who can reliably assess the flow-on effects of issues such as these and who is able to say one way or the other whether they have impacted on a student in such a way and to such an extent as to prevent him or her from engaging in study.

50. The other problem I have with this aspect of the case is that on the applicant’s own account he was able to engage in remunerative work without any apparent difficulty. Put shortly, I do not accept his uncorroborated assertion that these things impacted on him in such a way as to prevent him from studying at any stage during this period.

51. Moreover, on his own account, he appears to have engaged in productive study in the CIII at Ambition, a course which he completed during 2019, or so it seems. If the applicant’s case is that his family issues did not arise until after he completed that course it would be quite incompatible with the evidence given today which was to the effect that his family issues and COVID more or less impacted on him at the same time, which I infer must be as from in or about March 2020 when the international travel restrictions were first imposed in Australia. He did not indicate in his oral evidence that he had any need to go back to India before then.

52. The other concern I have about his evidence on this topic is that he said today that his family issues were not finally sorted until about June or July of this year. If this is so then he was studying productively in the CIV for a period of about three months when those issues were still ongoing.

1. Quite apart from the other shortcomings, there are way too many inherent inconsistencies in the applicant’s evidence to convince me that he was, in fact, unable to engage in productive studies during this period of no-enrolment. The evidence he has given does not adequately explain to me why he was unable to study during this period. Certainly, COVID of itself is not and never has been an excuse for an international student to ignore the conditions on which a student visa has been granted.

2. On my reading of the evidence this case involves a significant and largely unexplained period of non‑enrolment in a registered course of study. Absent a satisfactory explanation for it I think the inference must be that the applicant simply had other priorities. The delegate was right to give this factor significant adverse weight.

3. The delegate noted that if the applicant was unable to study during this period he could and should have contacted his education provider and requested a deferment or contacted the Department to investigate other options. He did neither of these things. If going down this path led to him returning to India when he could then so be it. The delegate correctly alluded to these options in his decision.

4. The circumstances in which the ground for cancellation arose do not assist the applicant’s case and indeed they were correctly given some weight by the delegate in favour of cancelling the visa. 

5. Insofar as the purpose of the applicant’s travel to and stay in Australia I basically agree with the delegate’s comments about this aspect of the matter. He came out here on a visitors visa but decided to stay and undertake study. He enrolled for that purpose in the DOB but his enrolment in that course was cancelled within about three months because he did not pay his fees. Leaving aside the CIII at Ambition, his more recent study history is equally unedifying. The delegate was correct in concluding that the purpose of his stay in Australia was not in line with the purpose of his visa. This matter was also given by the delegate significant weight in favour of cancelling the visa, and I agree with this finding.

6. It is true that the applicant is now enrolled in a fresh Hospitality package and has been for some time but this situation has only come about because he must have realised that the Department was aware that he had not been studying.

7. There is no real evidence of hardship in this case apart from the fact that he will be unable to continue with his current studies at Queensford. The delegate was prepared to give this a little weight against cancelling the visa. I too take it on board and give it some weight in his favour given that he has been studying the CIV now for about 12 months and appears to have made some progress in the course.

8. That said, I know nothing about the funding aspects of his education here, who has been paying his fees, whether it has been his family or whether he has been able to do that himself. Given his ongoing work activities here, my impression is that he is probably self-funded. Certainly, he has given no evidence that he has had access to external funds to pay for his tuition expenses. The CIV is not an inexpensive course attracting tuition fees in the order of $15,000, most of which he is likely by now to have paid. But in any event, as I have already indicated, he has not convinced me that he has made the sort of progress in the CIV which might have got him across the line, which might have indicated to me that he is now a genuine student and that he should, for that and other reasons, be given the chance to complete his studies despite his languid history.

9. The applicant has had ample opportunity by the Department to engage in productive studies here. I only need to look at his academic history to see that he has not done that. Not only has he not done it but he now seeks to be given another opportunity to finish the Hospitality package at Queensford in circumstances where he enrolled in the very same package at Alpha in 2019, courses which led to nothing. He studied that package for about four weeks before he went off on a tangent and enrolled in the CIII. He now wants to go back and resume his Hospitality studies at Queensford, studies which were due to finish at Alpha in April 2022. 

10. He told me today that he enrolled in the CIII because he thought he would pursue a career in aged care, that his intention at the time was to complete that course and go back to India. But for some unexplained reason he did not do that, instead he wanders off for about 18 months content to work here instead of studying for as long as he could while on a Student visa which required him to maintain enrolment in a full-time registered course of study.

11. I am unable to see why in these circumstances he should be given another chance. As I have said already, and perhaps more than once, a factor of importance in this case is that he did not enrol at Queensford until he realised that his visa was under investigation by the Department. Within a few days he enrols in registered courses, begins his studies and wants to be given another chance.

12. I am not prepared in this case to make these allowances for him. There is nothing in his academic or personal history which would suggest to me that he should be given another chance.

13. It may be that he is looking to establish a career in Hospitality. I cannot be certain about this on the anecdotal evidence he has led. His work in Australia might suggest he has an interest in this field but the evidence he has led is hardly convincing. The type of work he has been doing here, being employed in a production line as a food processor, is not entirely unrelated to Hospitality but it is a long way from a career in cooking or management of a food or beverage outlet.

14. But, as I say, the question really for me is whether as a matter of discretion he should be given another opportunity at the heel of the hunt to engage in studies which he should have been engaging in since in or about January 2019. There is nothing really in his academic or personal history to suggest that an allowance of this dimension can and should be made for him.

15. There is no evidence that the applicant has been uncooperative with the Department but whether he has acted responsibly in his dealings with it is another matter.

16. There is no suggestion in the evidence that any other visas will be cancelled under Sec 140 of the Act so one can put that prospect aside. Nor is there any suggestion in this case that any international obligations could be affected or breached.

17. As to the legal consequences of a decision to cancel the visa, I agree with the findings of the delegate. The legal consequences of a cancellation in this case are serious, no question about it. Not only will the applicant be liable to detention and ultimately deportation but, of course, he is also subject to the exclusion period should he apply for a further visa whilst in Australia. PIC 4013 also comes into play in his favour and should be given some little weight against cancelling the visa.

18. There do not appear to be any other relevant matters arising on the evidence.

19. Mr Bhattarai points out that the applicant is halfway through the CIV the implication being that he should, for this reason alone, be given the opportunity of completing it and the Diploma.

20. I cannot agree that the applicant in this case can have any real expectation of doing this given his unacceptable history. If an applicant knowingly sits back and waits for as long as this one did before he enrolled in a registered course of study, and then elects to engage in study in a belated attempt to convince a decision-maker that he should be given another chance, he can hardly complain if the decision is that he should not be given that chance. In such a case, and this is one of them, the applicant is the author of his own harm.

21. The fact that he is now enrolled and has made some progress in the CIV is a relevant matter and it has been taken into account but it cannot be given preponderant weight in the overall circumstances.

22. It is exceedingly difficult, if not impossible, in these circumstances for the Tribunal to reach the conclusion that the applicant is a genuine student who should now be given the opportunity of completing his studies and pursuing a career in the Hospitality sector. Much of his academic history and his own personal conduct simply do not support this proposition.

    Summary and conclusion

23. Attributing weight to the relevant considerations at the discretionary level, it seems to me that the reasons for cancelling the visa in this case clearly outweigh the reasons for not doing so.

24. Having considered the relevant circumstances, I conclude that the applicant’s visa should be cancelled. 

    DECISION

25. The Tribunal thus affirms the decision under review.

    Michael Bradford
    Member