PATEL (Migration)

[2020] AATA 2262

PATEL (Migration) [2020] AATA 2262 (24 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ANANDKUMAR ARVINDBHAI PATEL

CASE NUMBER:  1716994

HOME AFFAIRS REFERENCE(S):         BCC2017/2097159

MEMBER:Peter Newton

DATE:24 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 24 March 2020 at 5:11pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – limited academic progress – medical issues – lengthy travel time for studies – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    This is an application for review of a decision dated 31 July 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 (Act).

2.    The delegate cancelled the visa on the basis that the applicant has not been enrolled in a registered course of study since 23 November 2016.  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 22 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

4.    Prior to the hearing, the applicant provided to the Tribunal a written “Response on Invitation on Hearing” dated 8 August 2019 signed by the applicant (Response) together with copies of the Bridging Visa Grant Notice (E Visa) issued to the applicant dated 1 August 2019 and an Offer and Acceptance of Enrolment from Universal Business School Sydney (UBSS) to the applicant dated 30 July 2019, which the applicant has not signed.

5.    I have read all of the documents provided by the applicant to the Department and the Tribunal and considered all of the applicant’s evidence and submissions given at the hearing.

6.    The file of the Tribunal includes a Certificate and Notification Regarding Administrative Appeals Tribunal’s Discretion to Disclose Certain Information Under s 376 of the Act dated 29 October 2018 (Certificate).  During the hearing and in accordance with section 376(3) of the Act, I disclosed to the applicant the substance of the information that “may be of interest to the Department” disclosed in the Certificate.  I advised the applicant that I place no weight on the Certificate or on the information disclosed in the Certificate. The Certificate and the matters disclosed in the Certificate do not effect in any way my determination.

7.     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

8.    The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (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?

9.    Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

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

·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

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

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

11.     During the hearing, the applicant conceded that he has not been enrolled in a registered course of study since 23 November 2016.  Accordingly, the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

12.     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 Procedural Instruction ‘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

13.     The applicant was born in India.  The Decision of the delegate dated 31 July 2017 records that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 29 June 2015.  The visa was granted to study in Australia and it was expected that the applicant would do so. 

14.     During the hearing, the applicant said he obtained a Diploma of Civil Engineering in India and he came to Australia to study a Bachelor of Construction Management with the University of Newcastle. The applicant said he arrived in Australia on 15 July 2015. 

15.     I asked the applicant whether there was any compelling need for the applicant to remain in Australia.  The applicant said he has obtained a diploma in India.  He said he wants to specialise and get a “better future”.  Since arriving in Australia, the applicant said he has completed a General English course.  I asked the applicant whether there was any reason why he cannot now returns to India and pursue work there. The applicant said he only has a diploma and not a bachelor’s degree.  The applicant said if he obtains a degree his future will be bright.  The applicant conceded there was nothing stopping him from getting a degree in India.  I asked the applicant why he does not pursue a degree in engineering in India.  In response, the applicant said that an international degree “has much scope” than a degree in India.  The applicant said that by studying for a degree in Australia he will get different ideas and techniques and “much more scope”, however he did not identify what different ideas or techniques he would acquire from studying in Australia.  

16.     During the hearing, the applicant said he came to Australia to get a bright future and because of his mistake he was not able to do that.  The applicant asked for a chance so he can complete his studies and return to his home country.

17.     The applicant did not specify why he is not able to pursue his proposed course of study in his home country or region.  The applicant’s statement that an international degree “has much scope” than a degree in India is vague and unconvincing.  The applicant did not give any evidence about the course curriculum of his proposed course of study in Australia and how that course will assist him in obtaining work in his home country or a “better future”.  As stated, he did not identify what different ideas or techniques he would acquire from studying in Australia. He did not provide any documents from UBSS about the Bachelor of Business Course he has received an offer for.  I do not think it is unreasonable to expect an applicant to specify how a proposed course of study will assist an applicant and the area of work an applicant proposes to pursue upon completing a proposed course of study.  The applicant has failed to give any such evidence.    

18.     The applicant provided to the Tribunal copies of a Visa Grant Notice dated 1 August 2019 and an Offer and Acceptance of Enrolment from UBSS dated 30 July 2019 for a Bachelor of Business with a Major in Management.  The Offer and Acceptance of Enrolment was not signed and there was no evidence that the applicant had accepted the Offer.

19.     In his Response to the Tribunal, the applicant stated:

“As a result of the Student Visa being cancelled I was allocated BVE, and since I had full intention of studying I also applied for AAT, meanwhile waiting for my file to be opened and reviewed I was somehow unaware of the fact that study rights can be granted while being on BVE, as soon as this information was brought to my notice, I appealed the immigration department to remove the “no study” condition from my Bridging Visa E , which was eventually granted recently.(01-08-2109) My efforts in acquiring study rights to the Bridging Visa E clearly speaks about my intention of studying in Australia.”

20.     I place no weight on this submission as the applicant has not signed the Offer and Acceptance of Enrolment from UBSS or given any evidence that he has accepted the offer or stated why he has not accepted the offer. 

21.     The applicant was granted a visa for the purpose of study.  Since arriving in Australia on 15 July 2015 the applicant has only completed a General English course.  He has not been enrolled in a registered course of study since 23 November 2016.  Having regard to all of the evidence and submissions, I am not satisfied that the applicant a compelling need to remain in Australia. I attach some weight to this consideration against the applicant.

·     The  extent of compliance with visa conditions

22.     Condition 8202 is a mandatory condition applied to student visas which obliges visa holders to remain enrolled in a course of study and, depending on the course, either meet attendance requirements or meet academic progress requirements.

23.     Student visas (subclass 570-574) are granted for the purpose of studying towards, and achieving, an educational qualification in Australia.  The student visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted a student visa, the visa holder’s primary intention must be to study, maintain enrolment, attendance and course progress, in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course.

24.     As stated, the applicant accepts that he has not been enrolled in a registered course of study since 23 November 2016.  I give some weight against the applicant for the breach of condition 8202(2) by not being enrolled in a registered course of study. 

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

25.     The Decision records that on 18 July 2017 the applicant was notified of the intention to consider cancellation of the applicant’s visa and the applicant responded on 20 July 2017.  The Decision sets out the applicant’s response and correctly states that the applicant’s response does not provide any information relevant to this consideration. Notwithstanding this, the applicant’s Response to the Tribunal also does not provide any information relevant to this consideration.  Having regard to all of the evidence, I consider that this factor is neutral.

·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  

26.     In his Response to the Tribunal, the applicant stated:

“I had initially enrolled myself in University of Newcastle, and only when I arrived in Australia, I realised how far it is from my place of accommodation. Soon after, things did not go the planned way and due to the long travel time from my place to the university (8 hours return)I found it extremely difficult to attend my classes regularly.

Moreover, development of an acute back issue and advise by my Doctor to go on strict bed rest and avoid any form of travel, further resulted in my absence from the University.

Deteriorating health condition and extreme loneliness led me in a phase of depression and self- destruction.

Initially I was unable to request my university for a change of campus due to the misleading information and non-guidance provided by my agent in India as well as agents I consulted here. It would not be incorrect to say all agents I consulted in past, did not take much interest in my concern and only saw it as a money-making opportunity. And by the time I realised that my campus could be changed to a closer location my health had started to deteriorate and depression had started to take a toll on me. This change in my mental and physical condition further diminished my interest in pursuing the options of either requesting for my campus change or relocating in New Castle.

I was not comfortable talking about my ill mental state majorly due to the stigma attached with the mental illness, specially coming from India where mental health is not taken much seriously and anyone having any sort of issue is labelled as mad, I did not wanted to disclose my state to anyone fearing about the titles and adjectives I would be subjected to. Looking back now how I wish I would have discussed my state of mind with someone who could have helped me in overcoming my depression, language was another barrier I faced here, English not being the first language I spoke back home, made it difficult for me to communicate with people around here, therefore I decided to work on my language and improve my communication skills.”

27.     The first matter the applicant relies upon for causing or contributing to the cancellation of his visa is he found it extremely difficult to attend his classes regularly due to the travel time to and from University (8 hours return). 

28.     The applicant was born on 17 December 1991.  He was granted the visa offshore on 29 June 2015, when he was almost 24 years of age.  I do not think it is unreasonable to expect a genuine student of the applicant’s age who is travelling to a country for the first time for the purpose of study to make sufficient enquiries about the location of the campus at which the applicant will study and arrange accommodation proximate to the campus.  The failure of the applicant to secure accommodation closer to the University of Newcastle prior to arriving in Australia or to appreciate the distance between the University and the accommodation he had arranged indicates he is not a genuine student.

29.     The applicant said that when he first arrived in Australia he was living in Wentworthville, Parramatta.  I asked the applicant whether, after arriving in Australia, he had made any attempt to move closer to the campus.  The applicant said he had calculated the cost of food, fees and he “would not be able to survive”.  I consider that this response is vague and imprecise.  As a student, the applicant is entitled to work part time.  The applicant did not give any evidence about: - what his budget was; his day to day living expenses; enquiries he made about the cost of accommodation closer to the University of Newcastle; and enquiries he made in relation to obtaining part time work to meet his day to day living expenses.  I accept that the travel time from Wentworthville, Parramatta to the University of Newcastle is four hours and a burdensome. However, I consider that a genuine student faced with this burden would make enquires about obtaining accommodation closer to the University.  The applicant indicated that the reason for not moving closer to the University was because of budgetary constraints.  I do not accept this because the applicant’s student visa permits the applicant to work part time and the applicant has not provided any evidence of enquiries he made about securing closer accommodation, part time work and the cost of living closer to the University.

30.       The second matter the applicant relies upon for causing or contributing to the cancellation of his visa is “development of an acute back issue and advise by my Doctor to go on strict bed rest and avoid any form of travel, further resulted in my absence from the University.”  I do not accept this as the applicant has not provided any medical evidence to substantiate his claim that that he was diagnosed with an acute back issue and advised by his Doctor to avoid any form of travel. 

31.     The third matter the applicant relies upon for causing or contributing to the cancellation of his visa is “deteriorating health condition and extreme loneliness led me in a phase of depression and self- destruction.”  I do not accept this as the applicant has not provided any medical evidence to substantiate this claim.  The applicant has not stated whether he sought medical treatment for depression.  If he did so, it is reasonable to expect the applicant to provide evidence of the medical treatment he received for depression.  He has not done so.  The applicant says: “I was not comfortable talking about my ill mental state majorly due to the stigma attached with the mental illness”.  This statement does not explain why the applicant did not seek medical treatment for depression and self-destruction.  The applicant indicated he consulted a Doctor for back pain.  As the applicant says he sought medical treatment for his back, if he was suffering from depression, it is reasonable to expect that he would also seek medical treatment for his depression.  Having regard to all of the evidence, I am not convinced that the applicant was unable to study because of depression.

32.     The fourth matter the applicant relies upon for causing or contributing to the cancellation of his visa is “Initially I was unable to request my university for a change of campus due to the misleading information and non-guidance provided by my agent in India as well as agents I consulted here”.

33.     I asked the applicant if he considered transferring to another education institution closer to Wentworthville.  He said he tried to.  He said he approached an agent in Harris Park and was given “misinformation” and told to complete the course of study he had enrolled in.  I asked the applicant why that advice was “misinformation”.  The applicant said because he was not aware he could transfer to another campus. 

34.     I do not accept that the applicant was unable to request a change of campus due to misleading information and non-guidance provided by his agent in India and in Australia.  There is no evidence the applicant contacted his agent in India after arriving in Australia   about the time taken to travel to and from the University of Newcastle.  He did not give evidence of the substance and effect of what he said to the agent in Harris Park who told him to complete the course of study he had enrolled in.  I do not know what the applicant told the agent and so I am unable to assess the context of the advice the applicant says he was given.    

35.     Moreover, the applicant said that “by the time I realised that my campus could be changed to a closer location my health had started to deteriorate and depression had started to take a toll on me.  This change in my mental and physical condition further diminished my interest in pursuing the options of either requesting for my campus change or relocating in New Castle.”  Having regard to this statement, it is not the information provided by the applicant’s agent that caused him not to change to a campus closer to his residence but his “mental and physical condition”.  In relation to his alleged “mental and physical condition”, the applicant has not given any medical evidence supporting his claims of depression and back pain. 

36.     Moreover, the Decision records that the applicant: “applied for and was granted a deferment from study – PRISMS shows deferment granted 22 February 2016 to 3 June 2016” and the applicant “undertook and completed a General English course (15 August 2016 to 7 October 2016) while he claimed he was unable to study due to his depression.”  I do not know where the applicant studied the General English course.  If it was in Newcastle, there appears to be no reason why he could not resume his studies at the University of Newcastle.  Regardless of where he studied the General English course, the fact that the applicant deferred studies and then enrolled in another course of study, indicates that the applicant was capable of changing campus or enrolling in a Bachelor of Construction and Management course with another education provider closer to his place of residence prior to the cancellation of the enrolment with the University of Newcastle. 

37.     In the Request, the applicant says: “Meanwhile, due to my negligence in enrolling myself in the summer intake the University decided to cancel my enrolment”.  This indicates that applicant was able to enrol in the summer intake at the University of Newcastle. 

38.     Having regard to all of the evidence, I am not satisfied that the circumstances in which the grounds of cancellation arose provide reason not to cancel the visa. I give no weight to this consideration.

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

39.     There is no information to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department of Immigration.  There is no evidence the applicant has been uncooperative with the Department of Immigration.  He promptly responded to the Notice of Intention to Consider Cancellation of the visa.  In my view, all applicants and visa holders should be co-operative towards the Department of Immigration and I do not think an applicant should be given credit for doing what is required.  Accordingly, I assess this factor as neutral. 

·Whether there would be consequential cancellations under s.140

40.     There are no dependant visa holders.  Accordingly this factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

·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

41. If the Tribunal affirms the decision to cancel the applicant’s visa, the applicant will be an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart from Australia.

42.      Additionally, the applicant will be subject to section 48 of the Act which means that he will have limited options to apply for further visas in Australia. 

43.      The applicant will also incur a penalty in that he will be subject to a three (3) year exclusion period, where he may not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Requirements 4013 to be

44.     The Tribunal accepts that there is hardship in the form of mandatory legal consequences if it affirms the decision to cancel the applicant’s visa.  However, this hardship is the intended consequences of the legislation and accordingly I assess this factor as neutral. 

·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

45.     The circumstances of this case are not such that would engage Australia’s International obligations and the cancellation if the visa would not lead to a breach of Australia’s international obligations.  I therefore assess this factor as neutral. 

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

46.     This factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

·Any other relevant matters.

47.      I am not aware of any other relevant matters in relation to the Tribunal’s consideration of whether the visa should be cancelled.  

Conclusion

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

DECISION

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

Peter Newton
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.