Payavulla (Migration)

Payavulla (Migration) [2019] AATA 3440 (20 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Karthik Payavulla
CASE NUMBER:  1807513
HOME AFFAIRS REFERENCE(S):          BCC2017/3786100
MEMBER:Mark O'Loughlin
DATE:20 August 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 20 August 2019 at 9:34am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – course enrolment – no compelling reasons – no evidence provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202, Public Interest Criterion (PIC) 4013

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 14 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had breached condition 8202 of his visa by reason of failing to be enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 7 August 2019 to give evidence and present arguments.
The Tribunal has had regard to the following information provided by the applicant;
a.Copy of the decision of the delegate of the Minister; and
b.Email from the applicant dated 26 December 2017 in response to Notice of Intention to Consider Cancellation of the applicant’s visa;
The Tribunal has had regard to movement records on its file but has not relied on them because the applicant gave evidence about the matters contained therein and the Tribunal has relied on the applicant’s evidence instead.
The Tribunal has not relied on any other documents in reaching its decision.
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
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?
Condition 8202, as it applies to the applicant’s visa, 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)
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant told the Tribunal that he has not been enrolled in a registered course since 21 April 2017. He said that his enrolment was cancelled by Uni SA after he failed to enrol in any subject for the second semester of his course, which started in about March 2017.
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
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 applicant told the Tribunal that he arrived in Australia in mid-2016 to do a Master’s in Environmental Science at the University of South Australia.
He said that in his first semester he passed 3 of the 4 subjects but failed the third. He said that he found the change of environment to be unsettling and had a hard time adjusting to Australian education, culture and social customs.
He said that in addition to that his grandfather, to whom he was very close, died after the first semester. He was not able to say when that happened but he said that it added to his stress and consequent inability to concentrate or focus. He said that these were the reasons that he did not enrol in subjects for the semester starting in about March of 2017.
He also said that his younger brother died in about March or April of 2017 and that that added to his difficulties.
When asked what he did with his time during the period that he was not studying he said that he did not do anything. He said he would sit at home and think about his problems.
He said that his health deteriorated and that he started to suffer from shivering and fevers and he would get angry.
He said that in September 2017 he went back to his home in India to see his family doctor. Scans were taken and he was told that his problems were not physical.
He said that his doctor told him that he would get better so he returned to Australia.
He said that ultimately he did recover about 6 months ago, in about February 2019.
The applicant said that he did not seek treatment in Australia because he thought that getting treatment would cause his family in India stress. He said that if he had to go to hospital here in Australia that would be upsetting for his parents as there would be no one in Australia to look after him.
He said that he did not receive any treatment for his condition in India. He said that his doctor told him he would get better soon and not to be stressed.
The applicant said that he returned to Australia at the end of September 2017 and that until February 2019, when he recovered, he stayed at home and didn’t do anything.
He told the Tribunal that he didn’t work, study or socialise.
He agreed that he had health insurance and could have sought treatment but that he did not want to do that. He said that he wanted to sit in his room and be quiet.
The applicant was asked about an email that he had sent to the department on 26 December 2017, apparently in response to a notice sent by the department advising the applicant that it was considering cancelling his visa.
He said in that email that he had been unable to cope with the stress of study in Australia and he wanted to change to a VET course to understand the Australian way of life.
He said in that email “The factors mentioned above have shown very bad impact on my life and caused medical problems which made me travel to India for medical treatment.”
He agreed that he had not mentioned his Grandfather’s death as one of the “factors” and said that that was because his family had not told him immediately.
The Tribunal pointed out that the email was sent about a year after his Grandfather’s death and well after his trip to India.
He then agreed that he did know about his Grandfather’s death by then but said that he had been given help by a friend in preparing the email to the department and that he did not know what to say because of his trouble concentrating.
He said that the deaths of his brother and grandfather did not come to mind when he was doing the email.
The applicant’s evidence on these topics was not persuasive.
In relation to the purpose of the applicant’s travel to and stay in Australia, the tribunal notes that there is no evidence that he came here for any purpose other than study. There is no evidence of any other reason to be here although the applicant said that he does have a number of friends with whom he socialises.
He said that he is not in a relationship and that he has never worked in Australia. He said that his family are quite well off and that his father runs a beauty salon.
There is no evidence of a compelling need for the applicant to travel to or remain in Australia other than for study although equally there is no evidence that the applicant is compelled to come to or remain in Australia by a need to study.
The applicant stopped studying after one semester and he did not enrol in any subjects for the semester that started in about March 2017. His enrolment ceased in April 2017 and his visa was cancelled on 14 March 2018. His breach therefore lasted nearly a year and the Tribunal regards this as a substantial breach.
The applicant said that his family in India would be disappointed if he did not finish his study but that the expense of supporting him during his time in Australia has not been particularly onerous for them.
He said that it would be disappointing for them because they want to see him in a good position in India. The Tribunal finds that the evidence given by the applicant does not suggest that the cancellation of his visa will cause himself or his family hardship, not financial, psychological, emotional or other. The Tribunal accepts that it will cause him and his family some, perhaps significant, disappointment.
The circumstances in which the ground of cancellation arose are said by the applicant to be mental illness arising from stress caused by a sudden change in lifestyle and educational methods that had occurred in the second half of 2016, the death of the applicant’s beloved Grandfather at some time in late 2016 or early 2017, and the death of his brother a few months after that.
The applicant says that he sought treatment for his condition in India and was provided with a diagnosis but no treatment from his GP there. He did not provide the Tribunal with any evidence from the doctor, his family GP. He said that he was told not to dwell on his problems but that he came back to Australia and just, sat alone in his room for some months.
His explanation for not wanting to seek treatment in Australia was that it would upset his parents if he had to go to hospital. The Tribunal is unconvinced by this and is not satisfied that the applicant was suffering from mental illness or that his failure to enrol in the second semester of his course was for reasons beyond his control.
There is nothing to suggest that the applicant’s past and present behaviour towards the department is such as to warrant cancellation of his visa.
There is no evidence that cancellation of the applicant’s visa would result in consequential cancellations under section 140 of the Act.
If the Student visa is cancelled, the visa holder will become an unlawful non-citizen.
He will need to apply for a bridging visa. He may become liable to detention under section 189 and to removal under section 198 if he does not get a bridging visa or leave voluntarily.
Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013. That will mean he will be restricted in lodging an application for another visa to Australia for 3 years after the cancellation of the Student visa.
There is no information before the Tribunal that suggests that the cancellation would result in breach of Australia’s international obligations.
The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.
The applicant said that if he is given the chance to return to study he will finish his degree and make his parents proud.
He also said that he no longer intends to complete the Masters of Environmental Science and that he had arranged to enrol in a Diploma of Business at a college, the name of which he no longer recalls.
He said that to make his family proud it is not necessary to get a Masters. He said that the diploma is fine for him.
The Tribunal has weighed the considerations set out above together and finds that, although the applicant suggests that the grounds for cancellation arose from matters beyond his control, namely depression, he has failed to demonstrate that despite the fact that he should be able to do so.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Mark O'Loughlin
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.

[2019] AATA 3440

20 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction