Pollachi Sureshkumar (Migration)

Pollachi Sureshkumar (Migration) [2019] AATA 3582 (29 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Arrvindh Pollachi Sureshkumar
CASE NUMBER:  1718451
HOME AFFAIRS REFERENCE(S):           BCC2017/2186423
MEMBER:Mark O'Loughlin
DATE:29 July 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 29 July 2019 at 11:40am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –not enrolled in a registered course of study – breached condition 8202 – untrue information provided to Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 17 August 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).
The delegate cancelled the visa on the basis that the applicant did not comply with a condition of his visa because he was not 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 27 June 2019 to give evidence and present arguments.
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.
The documents available to the Tribunal to which it has had regard are;
a.Notice of intention to consider cancellation emailed to the applicant by the Department on 26 July 2017; and
b.Applicant’s undated response at folio 21 and enclosures;
Documents provided to the Tribunal by the applicant and to which it has had regard are;
a.Copy Departmental decision record dated 17 August 2017;
b.Screenshot of email from TAFE SA dated November 24 2016 advising that his application for enrolment had been unsuccessful;
c.TAFE SA letter of offer to study Associate Degree in Electrical Engineering dated 15 November 2016;
d.Undated communication from the applicant in support of the application and enclosing the earlier response to the notice of intention to consider cancellation;
e.Statement of Results of ISLPR; and
f.Mark sheets and provisional certificate, Department of Technical Education, Chennai;
Documents to which the Tribunal has had regard but which are not relevant to its decision are;
a.Documents relating to the applicant’s membership of Recreational Aviation Australia;
b.Evidence of health cover;
c.Prisms records and copies of cancelled Confirmation of Enrolment certificates upon which the Tribunal did not rely as it relied on the applicant’s testimony; and
d.Movement details upon which the Tribunal did not rely as the relevant information was provided by the applicant’s testimony;
Did the applicant comply with Condition 8202?
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 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.
In the applicant’s response to the notice of intention to consider cancellation of his visa he advises that he was “excluded/precluded” by the University of Adelaide “on October 2016” and that he had not secured another enrolment.
In his evidence before the Tribunal he said that he had done 3 semesters by June 2016 but had failed them all and was excluded. He said that he had not been able to enrol in another registered course.
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 gave evidence, which the Tribunal generally accepts, that he came to Australia in January 2015 to do a Bachelor of Electrical Engineering at the University of Adelaide.
He said that because he was only 18 years old and had never been out of India, he found it difficult to adapt to life in Australia. He also said that he was affected by issues with his classmates, including bullying. He also said that he had trouble with the difference in teaching styles between India and Australia.
He failed in all 3 semesters that he attempted before his enrolment was cancelled in October 2016. His visa was cancelled in August 2017.
The applicant gave evidence, which the Tribunal accepts, that he lives in a house at Smithfield Plains that is owned by relatives who have moved to Canberra. He worked a casual job through a labour hire agency until his visa was cancelled. His father pays his expenses and paid his tuition when he was studying.
At the time of the hearing he had been on a bridging visa for about 2 years and 10 months and he gave evidence that he occupies himself by attending a local shooting club. He has also trained in flying light aircraft and had done some volunteer work with the local council.
The applicant told the Tribunal that by the time he was expelled from university he suspected that that would happen. He said that he is a very reserved person and was reluctant to seek help with his study.
He also gave evidence that he had decided to apply to TAFE for an Associate Degree in Electrical Engineering and that he was offered a place in that course. He agreed that the documentation that he had provided from TAFE suggested that that offer was made in November 2016.
He said that he returned to India on about the 25^th or 26^th of November 2016, He agreed that on about the 24^th of November 2016 he had received notification from TAFE that his application for enrolment in the Associate Degree in Electrical Engineering had not been successful.
The applicant said that he was in India until the end of February 2017. He said that his Grandfather had died on 11 February 2017 and that he had left after that.
He said that he was planning to re-apply to TAFE for the associate degree course but that before he did that his visa was cancelled.
The applicant was asked about the date of his response to the notice of intention to consider cancellation of his visa (“NOICC”). He gave evidence which the Tribunal accepts that he wrote that letter in August 2017.
The Tribunal observed that the letter said he was waiting to hear from TAFE about his application. It was put to the applicant that he already knew that he had not been accepted by TAFE when he wrote that letter and had known since late November 2016, about 9 months earlier.
The applicant said that he had re-applied to TAFE in relation to the Associate Degree. When asked if he had any documents in relation to that application he said that he did not progress the application.
The Tribunal put to the applicant that although it says in his response to the NOICC “ My current updates are I have applied for an Associate Degree with TAFE SA and waiting for my offer letter to come through…” there was, in fact, no application at all. When asked to comment he was unable to do so for some time, then asked for the opportunity to double check the emails on his phone.
He was given permission to do and after checking said that he did not get the rejection email from TAFE on 24 November but that they told him that they were sending his email to the GTE (presumably “Genuine Temporary Entrant”) team for assessment.
The Tribunal observed that the email of 24 November 2016 appeared to be communication of the rejection of his application on GTE grounds. The applicant agreed and said that he could not start a course for 12 months. That is stated in the email and the Tribunal accepts this evidence.
The applicant then apologised for his error with the dates in his response to the NOICC. He said that the error was due to stress but acknowledged that the representation that he was expecting to be accepted by TAFE was not true.
He said that he wasn’t thinking straight at the time.
The Tribunal observed that he had submitted a copy of the same letter to the Tribunal and added a further representation that he had applied to TAFE.
The applicant agreed that his response to the NOICC contained information that is not true and that his submission to the Tribunal contained information that is not true.
He said that that was because of the stress and confusion surrounding the visa cancellation.
The Tribunal is reluctant to rely on the applicant’s evidence where it is not supported by objective evidence.
As for matters raised in the departmental guidelines, there is no evidence that the applicant has a purpose other than study or a compelling need to travel to or remain in Australia.
The applicant said that he stopped studying in June 2016. He made some effort to enrol in another course but that had failed by 24 November 2016 and the applicant had no prospect of then starting that course for at least 12 months. He did not give evidence of any effort to enrol in any other registered course. By the time of the cancellation of his visa, which effectively removed his study rights, he had not been studying for over 12 months.
In relation to hardship caused to himself or family members by the cancellation of his visa, the applicant said that his father had taken loans to finance his studies and is still paying the loan off. He said that his family in India are a middle class family and that his father works as a commissioning engineer in power plants. The applicant understands that his father borrowed the equivalent of about $80,000.00 or $90,000.00 Australian.
The applicant further said that the loan was taken on the understanding that he would return with an Australian qualification that would allow him to get a job with good prospects and that he would repay his father.
He said that he does have an Indian Diploma in Electrical Engineering which is sufficient for him to get work but will restrict him from getting promotions. He conceded that a Bachelor degree would be better but he thought if he can’t do that, perhaps it would help if he did an associate course. There is no support for this but the Tribunal accepts that the applicant believes it.
The applicant also said that he has already suffered stress because of the restriction on his study and that the stress has resulted in hypertension. He said that he has been on medication for hypertension since 2018. He did not have any independent evidence about that.
He also said that his family will be very disappointed if he returns to India without an Australian qualification and that he was the first in his family to apply for a graduate course.
The circumstances in which the ground of cancellation arose were that the applicant did not achieve an adequate academic level and so his enrolment was cancelled. He says that he was unsettled by the change in lifestyle and teaching when he moved from India to Australia. He says that he was too shy to seek help.
This is not a matter in which the ground of cancellation arose due to a relationship breakdown.
The applicant has suggested that the reasons for his cancellations arose were out of his control, being his reaction to a change in cultural and educational circumstances. The Tribunal observes that there is no evidence that he made any effort to deal with these changes or to seek help.
The applicant’s behaviour towards the department has generally been unremarkable save that he submitted a response to the NOICC that contained falsehoods.
There is no evidence that there are any persons in Australia whose visas would or may be cancelled under section 140 of the Act by reason of the cancellation of the applicant’s visa.
If the Student visa is cancelled, the visa holder will become an unlawful non-citizen.
He will need to apply for (a) bridging visa(s). 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 shows 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 was asked if there was anything further to which he asked the Tribunal to have regard. He said that he had generally abided by the laws of Australia with the exception of a single speeding ticket. He said that he had renewed his overseas health cover and asked the tribunal to consider his results in his Indian Diploma in Electrical and Electronics Engineering in which respect the Tribunal observes that the applicant has a provisional certificate showing that he passed his final examination in first class with distinction.
The applicant said that he believes that if he can get the Associate Degree and get his visa back he could make his parents proud. He said that he believes he has gone a long way to overcoming his “self reserved” behaviour and his shyness.
He further said that he wants to fulfil his Grandfather’s dying wish and also prove himself to his parents, to do which he will need a student visa. There is no support for the evidence as to his family’s attitude to his study.
The Tribunal has weighed all of the above evidence together in considering this application. Where the applicant’s testimony is not supported by other evidence the Tribunal is inclined to afford it less weight.
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 3582

29 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction