Ponnaganti (Migration)

[2018] AATA 5872

Ponnaganti (Migration) [2018] AATA 5872 (24 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr LAKSHMAN KUMAR PONNAGANTI

CASE NUMBER:  1619807

HOME AFFAIRS REFERENCE(S):           BCC2016/3312880

MEMBER:Melissa McAdam

DATE:24 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 24 October 2018 at 3:28pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in a registered course – not achieving satisfactory course progress – university cancelled Certificate of Enrolment (COE) – enrolment fees not paid by due date – psychological impact of grandmother’s illness – applicant did not attend hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140, 362B, 379A(5)
Migration Regulations 1994 (Cth), Schedule 4, PIC 4014, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 November 2016 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).

2. The applicant was represented in relation to the review by his registered migration agent.

3. On 3 November 2016 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his Student visa, inviting him to comment on a possible breach of condition 8202, which required him to be enrolled in a registered course. The NOICC set out information that the applicant had not been enrolled in a registered course of study since 9 November 2015.

4. On 11 November 2016 the applicant provided several documents in response, namely:

   ·The biodata page of his passport.

   ·Family Household Card, from India.

   ·Overseas Student Confirmation of Enrolment (CoE) from Nick Hannay Pty Ltd, for a Diploma of Hospitality Management course between 31 October 2016 and 26 October 2018.

   ·Several 2016 Medical reports and records for Mrs Narasamma P.

   ·A letter, dated 8 November 2016, from Greig Phillpot, Psychologist, stating that the applicant has not been enrolled in any academic institution since the beginning of 2016. The applicant told him his grandmother had cancer and became very sick in March 2016, which had been distressing for the applicant. The applicant had a very close relationship with his grandmother so her illness had a significant impact upon him. The applicant’s sleep pattern was disrupted. He had developed ruminative depression worrying about his grandmother’s illness. This is a cognitive, as opposed to emotional, experience. The applicant described a sense of helplessness which made him feel homesick.  He remains committed to completing a course of study in Australia.  He has been able to find another college where he can study a Diploma of Hospitality Management. The applicant believes he is more suited to this course than to software engineering and that the level will be easier for him.  It is Mr Phillpot’s opinion that there is every likelihood the applicant will be able to successfully complete such a course. The applicant’s ruminative depression will then likely lift, the applicant will feel more content, and his poor sleep patterns will dissipate.

5. The applicant’s Agent also submitted a letter, undated, to the Department, which contained the following:

   “Mr Lakshman has suffered a great deal since arriving in Australia. He tried and struggled with his course a great deal. He managed to complete two semesters but it was tough.

   The University then had a long Christmas break between October 2015 and March 2016. Mr Lakshman was under the assumption that he did not need to pay his fees until he returned to his classes but he the University expected fees to be paid in November 2015. Due to non-payment of fees the University cancelled his COE.

   He had not realised this until months had passed. Then he found out that his grandmother was sick with cancer in March 2016 and this was a devastating blow for him. Having his course cancelled and then finding out the illness of his grandmother took an incredible toll on Lakshman’s life. He felt useless being in Australia and unable to support his grandmother through this process.

   Soon enough he felt he had no energy, no motivation and he was incapable of completing any duties such as study on a daily basis.

   Please find attached evidence of grandmother’s illness. This caused him to stay at home and not re-apply for his course in March, thus missing a semester of study.

   His grandmother is still unwell, but he has now started to accept the fact that she is ill. He has sought the support of a psychologist, and also enrolled into a more simple course, which he believes will be much more easy to handle.”

6. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course.  The delegate found that the applicant had not been enrolled in a registered course of study since 9 November 2015. The issue in this case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

7. The applicant submitted a copy of the delegate’s decision to the Tribunal.

8. On 6 September 2018 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 19 October 2018. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

9. No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the hearing day and at the scheduled time and place.  Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Did the applicant comply with Condition 8202?

10. 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).

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

12. The Department’s records show that the applicant was not enrolled in a registered education course in the period 9 November 2015 up to at least 30 October 2016.  The applicant also confirmed in his November 2016 response to the NOICC that he had not been enrolled in a course of education since the end of 2015, until his enrolment in a hospitality course in late October 2016.

13. 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

14. 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

15. The applicant’s stated purpose to travel to and stay in Australia was study.  The applicant has not been studying in Australia for a substantial period of time.

16. The applicant has not claimed he has a compelling need to remain in Australia.  Nor does the information and evidence before the Tribunal indicate any compelling need for the applicant to remain here.

17. The Tribunal considers this matter does not support the setting aside of the visa cancellation.

    The extent of compliance with visa conditions

18. There is no information before the Tribunal that the applicant has breached any of his other visa conditions. The Tribunal therefore gives this factor some limited weight in the applicant’s favour.

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

19. The applicant has not presented information that the cancellation may cause him financial, psychological, emotional or other hardship.  He has provided information that his studies and his grandmother’s illness caused him emotional and or psychological distress.

20. Given the applicant has applied for review of the cancellation of his visa it follows that he is likely to be, at the very least, disappointed if his visa remains cancelled.  However without any actual information that the cancellation causes the applicant hardship the Tribunal does not consider there are hardship circumstances that favour overturning the visa cancellation.

    The circumstances in which ground of cancellation arose

21. The applicant has provided evidence that he did not enrol in a course of study in Australia because he did not realise he had to pay enrolment fees by the due date, and because of the adverse psychological impact of learning his grandmother in India was ill.

22. The Tribunal considers that the applicant’s claimed lack of awareness about the deadline to pay enrolment fees is disingenuous. The applicant’s college would need to inform  the applicant of enrolment requirements and deadlines. The Tribunal does not accept the applicant would not be aware of the due date for his enrolment fee.

23. While the Tribunal accepts that his grandmother’s serious illness would be very distressing to the applicant there is very little detail about how, or if, it incapacitated him to such a degree that he could not enrol in a course of study.  There is also no explanation presented why he did not return to India to be with her if he was not studying, was concerned about her state, and felt helpless because he was in Australia.

24. The Tribunal gives these circumstances a little weight in the applicant’s favour.

    The past and present behaviour of the visa holder towards the department and Tribunal

25. There is no indication that the applicant has been uncooperative or involved in any bad behaviour in his dealings with the Department. However the Tribunal notes the applicant has not responded to its invitation to a hearing and has not presented to the hearing. The Tribunal considers this behaviour indicates a lack of cooperation and engagement with the cancellation process and finds it a matter which weighs against the exercise of the Tribunal’s discretion in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

26. There is no indication in any of the information before the Tribunal that the cancellation of the applicant’s visa causes any consequential cancellations.  The Tribunal therefore finds this factor is not a relevant consideration.

    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

27. If the applicant remains in Australia without a valid visa he may become liable to detention. However this not an actual consequence of the cancellation but  a potential consequence dependent upon the applicant’s future actions.  If the applicant obtains a further visa or departs Australia before his bridging visa expires he is not subject to mandatory immigration detention.

28. If he departs Australia while on a Bridging visa or unlawful, he will be subject to Public Interest Criterion 4014 which provides for a 3 year period from the date of departure in which the applicant may not be granted a visa without the Minister’s approval. However this possibility has been brought about by the applicant’s own action in failing to fulfil a condition of his visa.  The seriousness of the applicant’s breach outweighs the concerns about the difficulties the applicant may have in returning to Australia within a three year period.

    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

29. There is no information before the Tribunal that any international obligations would be breached as a result of the cancellation of the applicant’s visa.  The Tribunal gives this factor no weight in the applicant’s favour.

    Any other relevant matters.

30. The applicant has provided no further information or submissions about why his visa should not be cancelled, since his November 2016 relatively brief response to the Department’s NOICC. 

31. The Tribunal considers no other relevant matter arises as to why the applicant’s visa should not be cancelled.

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

    DECISION

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

    Melissa McAdam
    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.