Nuka (Migration)

[2019] AATA 3968

Nuka (Migration) [2019] AATA 3968 (17 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anwesh Kumar Reddy Nuka

CASE NUMBER:  1703015

HOME AFFAIRS REFERENCE(S):           BCC2017/256470

MEMBER:Wendy Banfield

DATE:17 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 17 June 2019 at 8:11pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in course – mental health – financial difficulties – engaged in work – significant breach – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)
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 21 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

   Background

2. The applicant is a citizen of India and is currently 27 years old. He came to Australia in February 2013 to study a Master of Science (Computer Science). Prior to his arrival the applicant held a Bachelor degree in Chemical Engineering from India. The applicant commenced his Master’s degree and completed most of the units required. Due to personal circumstances he discontinued the course and enrolled in a different study program which was also discontinued. From March 2016 the applicant was not enrolled to study for more than 10 months.

3. The delegate cancelled the visa on the basis that the applicant did not maintain enrolment in an approved course of study as required by the conditions attached to his Student Visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 15 May 2019 to give evidence and present arguments.

   Evidence of the visa applicant

5. The applicant submitted the following evidence to the Tribunal:

   ·     Written submission dated 13 May 2019;

   ·     Letter from Bajaj Allianz Life Insurance Company Limited dated 26 June 2013 regarding the applicant’s father’s resignation from his employment;

   ·     Confirmation of Enrolment Certificate for an MBA at Holmes Institute;

   ·     Psychotherapist’s report dated 10 May 2019.

6. Evidence was also submitted to the Department which has been taken into account in this decision. This consisted of a response to the NOICC dated 20 February 2017; father’s resignation letter dated 26 June 2013; Statement of Results from Victoria University as at 15 August 2014.

   The hearing

7. The applicant gave evidence at the hearing and in written submissions prior to the hearing. The applicant had arrived in Australia in February 2013 to study a Master of Science in Computer Science. He had a Bachelor degree in Chemical Engineering from his home country. The applicant said he started his Master’s degree and completed 11 out of 16 subjects over three semesters, in 2013 and 2014. The applicant advised that his father had been forced to resign from his job in India and this placed him in financial difficulty, led to stress and affected his ability to study. He said he decided to enrol in a Master of Business Administration (MBA) instead at Southern Cross University. When asked why he did that when he had completed most of the Master of Science, he said he could not concentrate. The applicant said he originally wanted to pursue computer science because it is well regarded in his home country and there was more scope for his future. The applicant confirmed he had also changed his course of study due to financial stress.

8. The applicant said at the time he was employed as a commercial cleaner and had done that up to 2017. He started the MBA and completed one semester but it was too much of a financial burden for him in Australia and in India. He said he did not return to India because he would be a burden to his family and this in turn led to more stress for him. According to the applicant, he stopped studying in February or March 2016. He said at the time he was unable to do anything and did not know his enrolment would be cancelled. The applicant said he made a mistake in not taking compassionate leave from his education provider. However, after he made a trip back to India, he found his father was in a better position.

9. When asked what he had done when he was not studying, the applicant said he could not concentrate and just sat at home. He was living with friends at the time but conceded he was still working 20 hours per week. The Tribunal reminded the applicant he could not remain in Australia as the holder of a Student Visa and not study. He said he was not told his enrolment would be cancelled. The Tribunal asked the applicant how he was able to work but not study and he said he only worked to pay his living expenses but he could not pay for his course because that used to come from his father. The Tribunal put it to the applicant that he should have communicated with his university and the Department about his situation but he said he was not able to think properly at the time. The applicant conceded he had been in breach of visa conditions at the relevant time.

10. The Tribunal advised it was accepted the applicant had come to Australia for the purpose of study. Regarding a compelling need to remain in Australia, the applicant said he had to complete his course or he would have to go back to India with nothing. He said he would not be able to get a job with only his Bachelor degree. The applicant said he hopes to gain some work experience in Australia before going back to India to be a help to his family. The applicant declared he had complied with all other visa conditions. Regarding the degree of hardship that may result from his visa being cancelled, the applicant said he would be a burden to his family in India without completing a degree in Australia.

11. The Tribunal asked the applicant why his father’s resignation affected his studies. He said his father had been earning a good salary but afterwards he could not help. This led to the applicant being unable to concentrate on his studies. He agreed he had continued studying to the end of 2015 but said that was when his funding stopped. The applicant submitted a letter from a counsellor and said he had seen him for around 10 months. The applicant said that with the help of his counsellor he had been able to concentrate further on his studies and be more social. The Tribunal asked the applicant about his claims regarding the effect of his father’s resignation from employment on him as a Student. He said his father could no longer support him financially but also, the family status in society had lowered. He said now his father has started a business involving construction of roads and dams in the area of civil contracts as well as working in agriculture.

12. According to the applicant no one else holds a visa which is dependent upon him. He said he understands the legal consequences but if he cannot finish his studies, he will not be able to secure a good job and help his family in India. The applicant advised there were civil or political issues for him in his home country and he does not have children. He said he would like to rectify his mistake and asked that the Tribunal consider returning his visa so he can complete his course of study.

13. 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

14. 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?

15. 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).

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

17. The applicant was enrolled in a Master of Science and studied at Victoria University during 2013 and 2014 but did not complete the course. He confirmed that he was not enrolled in a course of study from 30 March 2016 to 6 February 2017 when the Department issued a Notice of Intention to Consider Cancellation (NOICC).  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

18. 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’

    ·     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

19. The Tribunal is satisfied that the applicant’s original purpose in travelling to and staying in Australia was to study.

20. Regarding whether the applicant has a compelling need to remain in Australia the applicant advised he did not want to go back to India with nothing, he would not be able to get a job with only a Bachelor degree and he also wants to gain some work experience in Australia after completing his studies. The Tribunal assessed this evidence in considering whether the discretion to cancel the visa should be exercised. The applicant’s submissions are general comments about his wish to complete his course in Australia and to obtain relevant work experience. The Tribunal does not accept the applicant would not be able to find a job with a Bachelor degree or that his evidence demonstrates a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia. 

    ·     the extent of compliance with visa conditions

    The applicant failed to maintain enrolment which is a fundamental breach of his Student Visa and weighs against the applicant in this case.

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

21. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. In response the applicant said he would be a burden to his family in India without completing a degree in Australia. In his written statement of 13 May 2019 the applicant claimed if he does not finish his studies his earlier coursework will have been for nothing and his family will have lost the funds that were invested in his education. The Tribunal has considered the applicant’s claims in this regards and places weight in his favour on this consideration.

22. The Tribunal is takes into account that the cancellation of the visa means the applicant would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, this is an intended consequence of the legislation and does not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

    ·     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

23. The applicant’s visa was cancelled because he did not continue to be a person who would satisfy the primary criteria for the grant of the visa. When issued with a NOICC by the Department, the applicant submitted reasons for his failure to maintain enrolment. The applicant claimed that because of a family financial crisis in India, at the relevant time he was stressed and helpless. According to the applicant his father had been forced to resign from his employment in India due to internal politics and a change in management. He said this put the family in financial crisis and his father suffered in terms of mental health and personal integrity. The applicant claimed this led to him being depressed also and unable to concentrate on his studies. The letter submitted in evidence in this regard is dated 26 June 2013 and on its face is a standard acceptance of a resignation. The Tribunal does not accept the applicant’s bare assertions that his father was forced to resign and that this led to a series of events that prevented him from maintaining his enrolment.

24. The applicant submitted the same reasons for his failure to maintain enrolment to the Tribunal. In his written statement of 13 May 2019 the applicant said he was shaken by his father being unemployed and his inability to support his family.  It was claimed this put financial pressure and stress on the applicant. As a result the applicant could not continue his original course of study and he enrolled in an MBA instead but due to his depression he could no longer cope. According to the applicant, in 2016 his father began a new business that was doing well and the applicant was able to travel to India to see his family in October 2016 which he did despite not having been enrolled in a course of study since March of that year in breach of visa conditions.

25. In his evidence to the Tribunal the applicant submitted a letter from a psychotherapist dated 10 May 2019. The applicant claimed to have been seeing the therapist for 10 months and advised this has helped him to study again. There is no evidence of how many times the applicant consulted his therapist but regardless, if he sought help 10 months prior to the date of the letter as he claims, this means he did not consult a mental health professional until approximately August 2018 which is two years after he visited his family in India in August 2016 and found his father to be well and with a flourishing contract business. It is also five years after the applicant’s father resigned from his job in May 2013.

26. The Tribunal has assessed the circumstances in which the grounds for cancellation arose and is not satisfied they were beyond the applicant’s control. The applicant’s reasons for breaching his visa conditions for an extended period was said to stem from his father being forced to resign from his long term employment for political/managerial reasons. As stated, the independent evidence in this regard is a standard letter from an insurance company accepting the resignation of the named employee. There is no independent evidence to support claims of coercion or any evidence of a devastating financial or social outcome for the applicant and his family as claimed. The applicant confirmed he had been working as a commercial cleaner up to and including 2017 which indicates he was able to carry out day to day activities. If the applicant was affected by financial issues and stress he could have sought assistance from his education provider, deferred his studies until he was in a position to resume or contacted the Department about his situation.

27. In his response to the Department’s NOICC on 20 February 2017 the applicant did not refer to having sought any medical assistance or counselling. According to the applicant’s evidence this did not occur until 10 months before the date of the psychotherapist’s letter of 10 May 2019 which would be around August 2018. This in turn is two years after the applicant’s evidence that his father had recovered both his health and his finances and five years after resigning from his employment. The Tribunal is concerned the applicant consulted a therapist after his visa was cancelled in order to bolster his claims before the Tribunal and is not satisfied it was obtained for genuine purposes. In this regard it is relevant that the therapist’s letter of 10 May 2019 was obtained just before the Tribunal hearing on 15 May 2019.

28. The Tribunal is also concerned about the content of the therapist’s letter of 10 May 2019. It states: “the applicant is working hard to complete his degree; he has no financial support from his immediate family as they find it difficult to survive in South India as they are not wealthy people…” This contrasts with the applicant’s claim in his contemporaneous statement of 13 May 2019 that in 2016 his father started his own business “which soon began to flourish and he began to do well in terms of supporting us” and his evidence at the hearing on 15 May 2019 that his father had his own business in civil contracting and agriculture.  In addition the therapist’s letter states the applicant is currently suffering from anxiety, fear, depression, and post-traumatic stress disorder which occurred after he learned of his father’s “termination” of employment. In his written statement to the Tribunal the applicant said that after 2016 when his financial situation stabilised he resumed his studies but his mental health deteriorated after his visa was cancelled and it was then that he sought professional help. The Tribunal is concerned the applicant has provided inconsistent evidence, has tailored his claims to account for his failure to comply with the terms of his Student Visa and has overstated the impact of his father’s resignation (described as “termination” to the therapist) both to the Tribunal and the psychotherapist he consulted.

29. For these reasons, the Tribunal finds the circumstances in which the cancellation arose as submitted by the applicant weigh against him in relation to the Tribunal exercising its discretion to cancel the applicant’s visa.

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

    There is no evidence to indicate the applicant has not cooperated with the Department and the Tribunal has given this some weight in favour of the applicant.

    ·     whether there would be consequential cancellations under s.140

30. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

31. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequence of the legislation and do not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

    ·     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

1. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.

   ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

2. The Subclass 573 Student Visa is not a permanent visa.

   ·     any other relevant matters

   The Tribunal notes the applicant is currently enrolled but did not resume studying until after he received a NOICC from the Department. The student visa program in Australia enables people who are not Australian citizens or permanent residents to undertake study in Australia. The applicant remained onshore for an extended period without being enrolled in an approved course of study in breach of visa conditions. The applicant advised he did not have the financial means to continue his Master’s course and was suffering from stress but he engaged in employment during the period when he was not studying to meet his living expenses. This was not the purpose for which the Student Visa was granted and the Tribunal finds it weighs against the applicant in its assessment of whether to exercise the discretion to cancel the visa.

   Conclusion

3. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal finds the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal considers it appropriate in this case to exercise the discretion to cancel the visa.

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

   DECISION

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

   Wendy Banfield
   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.