Patturi (Migration)

[2020] AATA 3481

Patturi (Migration) [2020] AATA 3481 (22 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Rahul Patturi

CASE NUMBER:  1934952

HOME AFFAIRS REFERENCE(S):          BCC2019/3346496

MEMBER:T. Quinn

DATE:22 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 22 July 2020 at 3:19pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – life stressors – evidence of mental health condition – 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 3 December 2019 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the current visa’) under section 116(1)(b) of the Migration Act 1958 (‘the Act’).

2. The applicant arrived in Australia on a student visa which was granted on 2 February 2018.[1]  The applicant is from India and initially came to Australia with the intention to study a Master of Computer Science, however, his intention has now changed and he wishes to study cooking and Hospitality and start his own restaurant in India.[2]

   [1]           See delegate’s decision.

   [2]           See delegate’s decision and applicant’s submissions to the Tribunal and Department.

3. On 3 December 2019, the delegate cancelled the current visa on the basis that the applicant had failed to comply with a condition of the current visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not complied with a condition of their visa. In this case, the applicant breached subclause 2(b) of condition 8202 of his visa in that he failed to maintain enrolment in a registered course that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that was at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. [3]  The applicant did not comply with this condition of his visa from 30 July 2018 to 3 December 2019.[4]  A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

   [3] As required by condition 8202(2)(b) of the Migration Regulations 1994 (‘the Regulations’).

   [4]           See delegate’s decision.

4. On 10 December 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.

5. The applicant appeared before the Tribunal on 22 July 2020 to give evidence and present arguments. 

6. The applicant was assisted in relation to the review by their registered migration agent, but their migration agent did not attend the hearing.

7. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

8. The Tribunal has had regard to all the information before it, including the Department File, all information and evidence provided by the applicant to the Tribunal.

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

   STATUTORY FRAMEWORK

10. The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.

11. Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

12. A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:

    a.be enrolled in a registered course, or in limited cases, a full-time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (2);

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

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

13. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course at the required AQF level.

14. The applicant was enrolled in a Master of Computer Science at AQF level 9.  This enrolment was cancelled on 30 July 2018 and the applicant was not enrolled in a full-time registered course of study at AQF level 9 or above from that date until 3 December 2019. 

15. The applicant has at all times acknowledged and accepted that there are grounds for cancellation.[5]

    [5]           See delegate’s decision, submissions from the applicant and applicant’s evidence at hearing.

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion to cancel the visa

17. 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  

18. Prior to his arrival in Australia, the applicant completed a Bachelor of Soft Technology (Computer Science) in 2017 in India.  He made submissions and gave evidence that his initial purpose in Australia was to undertake a Master of Computer Science but that this was his parents’ desire and not his own.  He stated he engaged with the first semester of this course but failed all subjects and could not understand it.  He gave oral evidence that he then became depressed for 2-3 months about failing all of his subjects and his parent’s not supporting a change to courses in cookery, which was his true passion.  He gave evidence, on questioning, that he saw a counsellor in Adelaide in relation to this but that he could not remember this counsellors name.  he has not provided any medical documents or other corroborating material to support his oral assertion that he was depressed and/or that he sought help in this regard.  He indicated he was not medicated.  Sickness is an unkind life stressor that everyone must deal with at some point.  Non-Australian citizens on student visas in Australia are no exception.  Many student visa holders are forced to contend with such difficulties during their stay in Australia.  They are all burdened in a similar way in that they must deal with some degree of emotional turmoil while away from their families in their home country.  At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas.  Many such students are young adults, just like the applicant.  There is no psychological evidence, beyond the evidence of the Applicant himself, that provides an adequate account of his mental state at the time. The Tribunal is therefore unable to form any view as to whether the Applicant was suffering any clinically diagnosable mental health condition that puts his suffering into a category that goes beyond the ordinary mental difficulties that ordinary people generally suffer on a day to day basis in dealing with life’s stressors, and that this may have been a cause of him effectively doing nothing to ensure he was complying with the conditions of his visa.  The Tribunal acknowledges the applicant’s submissions that his breach was unintentional, and he did not realise he had breached his visa conditions in failing to re-enrol in a course at AQF level 9 or above.  The Tribunal empathises with the applicant but ultimately it is an applicant’s responsibility to ensure they know and are complying with the conditions upon which their residence in Australia has been granted.  Further, it was open to the applicant to make enquiries of the Department in relation to such conditions (including variation of his visa to a Vocational Education Sector visa), particularly upon receipt of the Notice of Intention to Consider Cancellation (‘NOICC’) which was issued to him on 7 November 2019.  The applicant’s evidence in relation to this was that he did not know he was breaching his conditions and he was sorry.  The Tribunal appreciates that the applicant is remorseful but does not consider this is an acceptable explanation for the initial or continued breach of the condition of his Higher Education Sector Student visa.

19. He made submissions and gave evidence that he has always enjoyed cooking and wishes to start his own restaurant but that his parents did not support him in this pursuit, and he required their financial support in order to commence such study.  He undertook an English for Academic Purposes course in late 2018 and then commenced a Certificate III in Commercial Cookery on 30 July 2019 but only completed one semester before his visa was cancelled.  He said he would have finished his courses in May 2021 but due to his visa cancellation he could not continue, and he could not study after that.  The Tribunal finds this difficult to accept.  The Tribunal understands some course providers may make enrolment difficult if a visa is cancelled and that on occasion the Department limits study rights on a bridging visa after a visa cancellation, however, it was open to the applicant at all times to take steps to ensure he could study (such as sourcing a course provider that would accept his enrolment and/or contacting the Department to ensure he had study rights if those rights were limited). 

20. The applicant has been working in food delivery since moving to Melbourne in August 2018 earning $250-300AUD per week and although he made submissions about the fact that this only covered his expenses, the Tribunal is troubled by this evidence in the circumstances.  It seems to the Tribunal that if an individual is residing onshore on the basis of an intention to study, such study should take priority over work.  There are financial requirements before such visas are granted.  It raises concerns about an individual’s true intentions in residing onshore if when doing so they are working but not studying.

21. The Tribunal accepts that the applicant was not enjoying the Master of Computer Science and found it too difficult.  The Tribunal also accepts that the applicant enjoys cooking and that he may wish to seek a future career in that field.  However, these matters do not overcome the evidence which falls against the applicant as outlined above.

22. The applicant stated that if his visa is cancelled, he cannot stay here, and he will be worried and will not have a bright future.  He gave evidence that he will not have any idea what to do and will not have anything to think about with his future and his mind is blank and he will not have any opportunities.  The Tribunal finds this difficult to accept given the applicant holds a Bachelor qualification and that cookery courses would be available to him in his home country (albeit not the same as those taught in Australia).

23. The Tribunal understands that there are aspects of the Australian education system in cookery and hospitality that hold value and appeal for the applicant and that a visa cancellation can be disappointing for visa holders and their families but does not consider this constitutes a compelling need to remain in Australia. 

24. The Tribunal considers the applicant does not have any compelling need to remain in Australia as he could study cookery courses in his home country or region.  The Tribunal considers the evidence in favour of cancelling the applicant’s visa is greater than the evidence against cancelling the applicant’s visa in the matters described in paragraphs 18-24.

    Circumstances in which ground of cancellation arose

25. The applicant’s visa cancellation arose in circumstances set out in paragraphs 18 and 19 above.

26. The Tribunal empathises with the applicant in relation to: his parent’s outlook on his education and future career; the difficulties he faced in his Master of Computer Science in Adelaide; and any emotional or psychological difficulties he faced after failing his first semester.  However, the options to return to India or find a new AQF level 9 course to enrol in to avoid breaching his visa conditions was open to the applicant at all times.

27. The Tribunal acknowledges the applicant’s submissions that his breach was unintentional and that he suffered some emotional/mental anguish in mid-late 2018 but considers the circumstances in which the ground of cancellation arose were within the applicant’s control to a large extent.  Further, if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same. 

28. The Tribunal gives some weight in favour of cancelling the applicant’s visa in this regard

    Extent of compliance with visa conditions

29. The Tribunal notes the applicant’s evidence that he has otherwise complied with student visa conditions.  However, the breach of the condition associated with the current visa is extensive, being sixteen months.  The Tribunal considers the sixteen month breach a significant breach and gives weight in favour of cancelling the applicant’s visa in this regard.

    The degree of hardship that may be caused to the visa holder and any family members

30. When asked about this factor, the applicant gave evidence as outlined in paragraphs 22 and 23 above.  The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

31. The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.

32. The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition.  Whilst appreciating the hardship the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

    The visa holder’s past and present behaviour towards the Department

33. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department.  The Tribunal considers the applicant’s behaviour warrants some weight against cancelling the applicant’s visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act

34. This is not relevant to the applicant.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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

35. If the current visa is cancelled, this will result in the following:

    a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia;

    b.the applicant will have limited options to apply for further visas in Australia pursuant to section 48 of the Act;

    c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed.  The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.

    The Tribunal gives little weight to this consideration in favour of the applicant because:

    ·these are the intended consequences of the legislation when a visa is cancelled under these grounds;

    ·it reflects the seriousness with which the Department takes this type of cancellation ground;

    ·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.

    Australia’s international obligations

36. There is nothing before the Tribunal to suggest that the cancellation of the current visa would breach any international obligations.  The Tribunal places no weight on this in favour of or against the applicant.

    Any other relevant matters

37. Nil.

    CONCLUSION

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

    DECISION

39. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    T. Quinn
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.