Nerala (Migration)

[2019] AATA 6194

Nerala (Migration) [2019] AATA 6194 (23 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gopal Reddy Nerala

CASE NUMBER:  1827161

HOME AFFAIRS REFERENCE(S):          BCC2018/1915882

MEMBER:Peter Booth

DATE:23 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 23 October 2019 at 1:33pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in course – financial issues – employed at the time – did not request deferment – did not make financial arrangements – 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 7 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 did not satisfy condition 8202 (2) (a). 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 17 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant: 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 full time registered course: 8202(2)(a)

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

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

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

9. The decision of the Minister’s delegate dated 7 September 2018 found that the applicant had not been enrolled in a registered course of study since 10 October 2017. The applicant, in the hearing, affirmed the correctness of this finding. 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

10. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

11. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

    ·     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

    The applicant gave evidence that he arrived in Australia on 10 December 2016 as the holder of a Subclass 500 (Student) visa with the intention of studying a Master’s degree in Information Technology. The applicant gave no evidence as to whether he had a compelling need to travel to or remain in Australia

    ·     The extent of compliance with visa conditions

    The applicant gave evidence at the hearing that he was not enrolled in a registered course of study from 10 October 2017.

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

    The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    ·     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

    The applicant said that he had completed a Bachelor’s degree in Computer Science in India prior to arriving in Australia. He said that he commenced the Master’s degree course in Information Technology in February 2017 but did not complete it. He said that he attended the first semester and then “a few classes in second semester”. In answer to a question from the Tribunal he said he passed one subject in the first semester but failed two other subjects in the first semester. The Tribunal enquired whether he abandoned the course or was he excluded. The applicant appeared reluctant to answer this question but ultimately said “I did not leave it, I did not go”. This was rather typical of the applicant’s unresponsive answers during the hearing. The Tribunal enquired why the applicant did not continue with his course of study. There appeared to be several reasons. First he said that his father’s circumstances in India had changed and that his father was unable to pay the tuition fees. He added that his father had tried to borrow money but that “farming was hard”, and also that “dad got injured by working on the farm”, also that the applicant was “worried” and that his sister had entered into an arranged marriage. The Tribunal enquired whether the applicant had considered obtaining employment and paying for his own tuition fees. He said that “I tried to work but work was not enough”. In answer to a question from the Tribunal he said that the tuition fees were $10,000 for one semester. In answer to a question from the Tribunal he said that he worked “in a warehouse”. The Tribunal enquired how much the applicant earned from that employment to which he said “I cannot remember properly”. The Tribunal pointed out the period to which these questions related was approximately July 2017 and again asked whether the applicant could recall how much he derived from the warehouse job. The applicant then said it was “$400 or $500”. The applicant was unable to particularise this any further when asked whether this was in respect of weekly or fortnightly wages. As to the injury which it was asserted that his father suffered, the Tribunal enquired whether the applicant produced any medical opinion evidence to support the assertion. The applicant said that there may be documents “in India” and that “I did not think that you would ask”.  At all events no medical evidence has been produced in support of this assertion. The Tribunal enquired as to the relevance of his sister’s “arranged marriage”. The applicant responded by saying that in India there was a system of arranged marriages, “in our area of 21 - 22 years” and that he was “depressed” because his sister’s “marriage had been cancelled”. The Tribunal asked the applicant whether he had medical opinion evidence to support his assertion of “depression”. He said that he did not. He added that he did not “go to the doctor” and that “we do not go to the doctor and share our feelings with the doctor”. The Tribunal asked the applicant whether he wanted to say any more about why he left the course of study. He said that he “was depressed” and his father “was unwell”. He did not elaborate.  The Tribunal does not accept that that the applicant had any relevant depression.

    The Tribunal enquired whether the applicant had attempted to defer his course. This was asked several times and formulated several different ways. The applicant appeared unwilling to answer the question and provided no substantive response save, ultimately, to say, “I did not know what to do”. The Tribunal drew the applicant’s attention to the Notice of Intention to Consider Cancellation of the visa which was received by him on 20 August 2018. The Tribunal noted that the applicant had nominated his current migration agent as the person who was assisting him in relation to the notice. Indeed the migration agent had asked for an extension of time within which to respond to the notice, which was granted. The delegate’s decision record notes that no material was provided by the applicant within the extended time. The Tribunal asked the applicant with why he did not provide material to the department in response to its invitation. The answer which was somewhat confused appeared to be in substance that his father could not send any money and that he had asked his father for documents. The applicant did not elaborate upon these assertions save to say that on 6 September 2019 he gave the documents to his migration agent. The applicant’s explanation was uninformative and unconvincing.

    The Tribunal noted that the applicant had provided a lengthy, undated, handwritten statement in support of his application for review. The Tribunal informed the applicant that it had been read and would be taken into account. The Tribunal notes that the undated handwritten statement is broadly consistent with the applicant’s oral evidence at the hearing. The Tribunal turned to consider a large number of documents which were produced on the morning of the hearing and asked the applicant to explain the significance of the documents. The applicants answer was to say that his father now had money. He was unable to draw the attention of the Tribunal to any particular document in support of the assertion. The applicant was invited to make any further comments in support of his application. His lengthy answer was in substance that he considered if he returned to India “without a degree” he would “have trouble” securing appropriate employment, and that he wanted to assist with his family’s economic well-being and that he did not want to waste his father’s money.

    The applicant’s migration agent, Mr Hafeez was invited to make any submissions in support of his client’s application and in particular to explain the relevance of the  many documents which had been provided on the morning of the hearing. The applicant’s migration agent was unable to provide any meaningful submissions in relation to the documents and after an extended period of questioning, the Tribunal informed the  applicant’s migration agent that it required any further submissions as to the relevance of the documents to be made after the conclusion of the hearing by 4 PM on that day.  Later on 17 October 2019 the applicant’s migration agent provided to the Tribunal a lengthy submission cross-referenced to the identified documents. This is far preferable to the unstructured way in which the unidentified documents were attempted to be tendered and long, often confused submissions of general relevance were made together with personal anecdotes and evidence from the bar table by the migration agent. This is not to be encouraged.

    The Tribunal turns to consider the submission. The submission makes a variety of points relevantly as follows.  First, the applicant has an offer of a place in a Master’s of Business Administration course commencing in 2020. This is not relevant to the issues at hand. Secondly, the applicant has completed an English language course. This has little relevance but is given some weight. Thirdly, the applicant has completed secondary school and he has a Bachelor’s degree. This was the subject of oral evidence by that the applicant and which is accepted by the Tribunal.  However it has little relevance and is given little weight.  Fourthly the applicant’s father owns land in India. This was the subject of oral evidence at the hearing and which was accepted by the Tribunal.  

    Next an affidavit was provided from the applicant’s father dated 6 September 2018 in which he testified as to his financial circumstances, at that time. This was the subject of oral evidence at the Tribunal namely that the applicant’s father experienced a period of difficult financial circumstances. The Tribunal accepts the oral evidence; the document adds little weight to it. Lastly, a bank statement disclosing that the applicant’s father had approximately AU$45,000 at the bank as at 29 August 2018. This is given little weight because it is not as to the relevant period of time when the applicant said he could not pay the fees. The substance of the applicant’s claim is that his father could not afford to pay the fees and therefore the applicant either abandoned the course or, more likely, was excluded because he did not pay the fees.  The Tribunal accepts that this was the reason. The issue is whether the applicant breached the visa condition in circumstances which were beyond his control.

    In the Tribunal’s view the breach of the condition was within the applicant’s control for a variety of reasons. First he could have obtained employment and attempted to fund his own course. He gave reluctant evidence on this point but did not explain why he could not have made arrangements to fund his own course. It was clear that the applicant did have employment at the time and was earning in the order of $400 or $500, perhaps each week. This would have been sufficient to pay tuition fees in a course, although the applicant may have had to adjust his expectations as to the particular course. In that regard the Tribunal notes that the applicant was initially enrolled in a Master’s degree of Information Technology but now seeks to commence a Master’s degree in Business Administration. On that basis the applicant appears to have some flexibility about the actual course in which he is enrolled. It follows that if it was a choice of continuing to study or not continuing to study, a course of a different nature but which may have lesser tuition fees could have been contemplated.  Secondly the applicant could have approached the course provider to either defer the course or make appropriate financial arrangements. It appears that the applicant did neither of these things.  Accordingly the Tribunal is not satisfied that the breach of the condition was beyond the applicant’s control.

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

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     Whether there would be consequential cancellations under s.140

    The Tribunal was provided with no evidence on this point and gives it little weight.

    ·     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

    The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    ·     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

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

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

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     Any other relevant matters.

    There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    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.