Pulicharla (Migration)

[2022] AATA 5144

Pulicharla (Migration) [2022] AATA 5144 (14 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pavan Kumar Pulicharla

CASE NUMBER:  2014555

HOME AFFAIRS REFERENCE(S):          BCC2020/1697340

MEMBER:Gabrielle Cullen

DATE:14 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 14 November 2022 at 10:06am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – not enrolled in a registered course – consideration of discretion – length of time not studying – death of grandmother – father’s illness – family’s deteriorating financial situation – mental health – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA

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 23 September 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.

3. The Tribunal received an application for review of the delegate’s decision on 28 September 2020. The applicant attached the Department’s Notification of Cancellation under Section 116 dated 23 September 2020 which indicates that on 9 September 2020 the Department notified and invited the applicant to comment on the intention to consider cancellation of his subclass. The applicant provided a response on 15 September 2020.

4. The applicant appeared before the Tribunal via video on 31 October 2022 to give evidence and present arguments.

5. 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

6. 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?

7. 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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).

9. The decision record also set out that the applicant was notified of the intention to consider cancellation (NOICC) of his visa on 9 September 2020 on the basis that the applicant had not been enrolled in a course of study from 17 December 2019. The Tribunal is satisfied that the NOICC was validly issued.

10. The delegate found on 23 September 2020 the applicant had not been enrolled in a registered course of study from 17 December 2019. The delegate proceeded to cancel the visa on 23 September  2020.

11. As raised with the applicant at hearing via s.359AA the applicant’s Provider Registration and International Student Management System (PRISMS) records contain information that the applicant had not been enrolled in a registered course of study from 17 December 2019 when enrolment was cancelled for non-payment of fees until the date of the delegate’s decision of 23 September 2020. The Tribunal also raised with the applicant via s.359AA that movement records indicate he was the holder of a subclass 500 student visa granted on 17 November 2019 in which condition 8202 applied.

12. The applicant also did not dispute that he had not complied with condition 8202(2) of his visa in his reply to the Department. The applicant confirmed in oral evidence to the Tribunal that he was not enrolled in a course of study from 17 December 2019 to the date of the delegate’s decision.

13. Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (CoE) in a registered course or a full-time course of study or training from 17 December 2019 to 23 September 2020 as the holder of a subclass 500 visa. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

14. The Tribunal is therefore satisfied that the grounds for cancellation in s.116(2)(b) exist.

    Consideration of the discretion to cancel the visa

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

16. 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’.

    Background

17. The applicant is a 29-year-old citizen of India. He first arrived in Australia on 9 August 2017 on a subclass 500 student visa valid to 29 August 2019 to undertake a Master of Information Technology from 31 July 2017 to 30 June 2019. As raised with him at haring via s.359AA the evidence indicates enrolment was cancelled when he notified a cessation of studies on 12 September 2018.  He was granted a further student visa on 25 November 2019 valid to 23 September 2020 to study a Graduate Diploma of Management (Learning) from 18 August 2019 to 16 August 2020 but the evidence indicates enrolment was cancelled for non-payment of fees on 17 December 2019. He enrolled in the Graduate Diploma of Management (Learning) from 28 September 2020 to 26 September 2021 but enrolment was cancelled.[1] A no study condition was placed on his bridging visa granted on 22 December 2020.[2]

    [1] As raised with the applicant via s.359AA at hearing.

    [2] Course study history and visa condition raised with him via s.359AA at hearing.

18. The applicant provided a  statement to the Department dated 15 September 2020 in response to the NOICC. He claimed that in the second semester of studying the Master of IT his father was hospitalised with a heart attack and he underwent surgery in October 2017. He claims he felt unwell during this time and his family were under much financial stress due to the surgery and medication. He claims that  in Australia he had difficulties in terms of food and a place to live, he could not pay rent and was looked after by a few of his friends, but he could not afford proper food to keep his health in check. He claims he lost sleep due to the constant worry over his father’s health and the mounting pressure on him to complete his studies. He claims his parents forbade him to go to India as they thought it would be a waste of time and money, and that he would not complete his studies. He claims due to the huge financial struggles his parents were going though he did not take their money to study and did not study. He claims he last studied in November 2017. He claims after this time he was constantly in a mess, he kept trying to find education providers so he could get back on track. He claims he did not enrol as he did not have the money to pay his fees. He claims when his parents came to know the situation, they forbade him to return without a degree. He claims despite telling them he did not want to take their money and he was unhealthy they asked him to think of his honour and to complete his education. He claims although he feels homesick, he realises that if he does not study now, he will not be able to face his parent’s disappointment and the relationship with his family will become strained. He claims he wants to be a good son. He claims that they have insisted the financial situation is better now and he requests one last opportunity to study.

19. He also provided a  response to the NOICC dated 9 September 2020 in which he notes that since the visa was granted on 25 November 2019 his COE was cancelled as he was not able to pay the fees. He claims he has tried his very best to sort this out but could not and it has always been his genuine intention to complete his studies in Australia. He also addresses the discretionary criteria, his evidence where relevant is outlined below.

20. He also provided medical evidence of his father’s heart complaint and hospitalisation in October 2017.

21. He also provided evidence at the Tribunal hearing as to why he has not been enrolled and studying from 17 December 2019 to 23 September 2020, his study record and other factors which where relevant is outlined below.

    The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia

22. The purpose of the visa grant was for the applicant to travel and stay in Australia for the purposes of study. The evidence from the applicant is that he first arrived in Australia on 9 August 2017 on a subclass 500 student visa valid to 29 August 2019 to undertake a Master of Information Technology. The applicant indicated at hearing that his purpose for coming to Australia was to study a Master of Information Technology.  The Tribunal accepts that his travel to Australia in August 2017 was for the purpose of study.

23. The evidence from the applicant indicates he did not successfully complete the Master of Information Technology and ceased studying in November 2017 although enrolment was not formally cancelled until 12 September 2018 when he notified cessation of studies. He did not enrol in a course until he enrolled in the Graduate Diploma of Management Learning from 18 August 2019 to 16 August 2020. Enrolment in this course was cancelled on 17 December 2019 for non-payment of fees. He was granted a further visa on 25 November 2019 valid to 23 September 2020 to study a Graduate Diploma of Management (Learning) from 18 August 2019 to 16 August 2020 but the evidence indicates enrolment was cancelled for non-payment of fees on 17 December 2019. Despite his enrolment in this course the applicant’s evidence in his 15 September 2020 statement was that he had not studied a course since November 2017. He enrolled in the Graduate Diploma of Management (Learning) from 28 September 2020 to 26 September 2021 but enrolment was cancelled.[3] A no study condition was placed on his bridging visa granted on 22 December 2020.[4] His evidence is that  he now wants to stay in Australia and study to become a pilot.

    [3] As raised with the applicant via s.359AA at hearing.

    [4] Course study history and visa condition raised with him via s.359AA at hearing.

24. While the Tribunal has accepted above that his travel to Australia on 9 August 2017 was for the purpose of study it does not except for the reasons outlined below that from 17 December 2019 to 23 September 2020, being the relevant period his stay in Australia was for the purpose of study.

25. The Tribunal views the length of time he was not studying from 17 December 2019 to 23 September 2020 a period of 10 months to undermine his claim his stay in Australia was for the purpose of study. The Tribunal is of the view if his intention was to study, he would have enrolled and studied in this period.

26. Further, his evidence in his statement dated 15 September 2020 is that he had not studied since November 2017 although was enrolled in the periods outlined above, has not completed any course and he was not enrolled in any course from 12 September 2018 to 19 August 2019. The Tribunal views this as also undermining his claims he is in Australia for the purpose of study and is of the view if his intention was and is to study, he would have studied and achieved course progression in this period.

27. In making this finding the Tribunal has considered the reasons he did not study in the relevant period and from November 2017.

28. Firstly, at hearing he referred to the death of his grandmother in Covid and the affect this had on him. However, as raised with the applicant there is no mention of this in his statement and if this event had the impact on him that led him to be unable to study in the relevant period the Tribunal is of the view he would have included this as a reason in hs statement and submission dated 15 September 2020.

29. Secondly, he has referred to his family’s deteriorating financial situation because of his father’s heart issues as impeding his ability to study. He attached to his statement dated September 2020 evidence confirming his father had heart difficulties in October 2017 with a cost of 244,000 rupees ($4,613AUD). As it is the applicant’s evidence he has worked part-time since 2017 as a delivery food driver, albeit stopping in Covid, the Tribunal has difficulty accepting this. He also notes to the Department that there is no evidence of his inability to pay his course fees  being the reason for him not being enrolled rather his poor mental health being the cause of his non-compliance.

30. Thirdly, as outlined in the Department decision, attached to the Application for Review, he refers being emotionally unstable and  emotionally distressed in general. He submitted to the Department he was suffering depression which debilitated his life and ability to study. At hearing he referred to this being caused by his father’s heart issues and his health was not good due to the lack of monetary support from his family, making it difficult for him to rent and find a place to live and being unable to buy proper food. He claims this led him to lose sleep and affected his mental health rendering him unable to study. He refers in his statement to being emotionally unstable and distrusted as well as being depressed and that his depression debilitated his ability to attend courses. However, the evidence indicates he only saw a medical profession twice in 2018 , who told him to be calm and patient. While the Tribunal accepts that there were events that occurred outside the applicant’s control, such as his father’s illness,  it is not satisfied that the applicant demonstrated that his physical, emotional and mental response to these events as claimed left him unable to study and that his failure to maintain enrolment and achieve course progression was because of these events. It is of the view that if the mental stress he faced was to the extent that he could not study he would have sought medical or professional help after 2018 and in the relevant period, which the evidence indicates he did not. As noted above the evidence indicates he was also able to work though much of the period and has difficulty accepting his claim he was unable to rent or buy proper food.

31. Fourthly, he indicated he was not aware of the rules, the requirements of condition 8202 and that he was required to study. However, as raised with the applicant the Tribunal has difficulty accepting that he would not be aware of the requirement to study on a student visa. It is also if the view if the applicant’s purpose to stay in Australia was to study, he would have been enrolled and studying, even if he did not know the rules.

32. Fifthly, he referred to initially struggling with the Australian education system to the Department which the Tribunal accepts effects many new students in Australia but does not explain his lack of any actual study in the relevant period or since November 2017 as is his claim.

33. As to why there is a compelling need for him to stay in Australia, he referred to now wishing to become a pilot. He asked for one more chance to study to make his parents proud. When asked why he could not study a similar course in India he said an Australian degree is more highly appreciated and the study in India is not as good. He referred to the better career options from studying in Australia. The Tribunal dos does not accept these circumstances represent a compelling need.

34. The Tribunal has considered the applicant’s evidence however, on the material before it, the Tribunal is not satisfied that the applicant has a compelling need to travel and remain in Australia.

35. The Tribunal gives this this discretionary factor no weight in favour of the applicant.

    The extent of compliance with visa conditions

36. The applicant did not comply with condition 8202(2) and was not enrolled in a registered course of study from 17 December 2019 to 23 September 2020. The Tribunal considers this period of 10 month to be of concern, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa.

37. The Tribunal acknowledges that there is evidence he was also not enrolled in a course of study from 12 September 2018 to 19 August 2019 despite being the holder of  student visa in this period. The Tribunal acknowledges that despite this he was granted a further student visa on 25 November 2019.

38. Although there is no other evidence of non-compliance, considering the period of time the applicant was not enrolled in a registered course of study prior to the date of cancellation, the Tribunal gives this discretionary factor little weight in favour of the applicant.

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

39. At hearing the applicant referred to being 29 and the difficulty returning home without a degree. He referred to his parent’s shame if he returned without a degree and Australian qualifications. He said they would isolate him and h would be unable to live with them. He also referred to the difficulty obtaining employment without an Australian degree. He said he would be cast out and couldn’t find a job. To the Department he said he would be a great disappointment to his parents which he could not handle. He said as their son he wants to make them proud as they have been very supportive. He referred to the strong cultural and societal pressure by Indian families on their children the beneficiary of the family burden and responsibilities He said if he is sent back, he will not have qualifications and will be unemployed and he will have difficulty completing in the business world.

40. The Tribunal questioned why he could not study the bachelor’s degree in India nd he said it is not as good as in Australia with less opportunities.

41. As set out above, the Tribunal is satisfied that the applicant still has study options available to him in his home country. While it accepts there is a degree of hardship to the applicant  and his family as to his lack of obtaining Australian qualifications than that provided by studying in India on the evidence before it the Tribunal gives such disappointment and shame for him and his family, including not being able to live with them low weight in favour of the applicant. It also gives low weight to his claim that he will have to fend for himself particularly as he is  29 years of age and has lived without his parents since 2017.

42. The Tribunal gives this consideration low weight in favour of the applicant.

    Circumstances in which the ground of cancellation arose

43. The ground for cancellation arose as a result of the applicant’s breach of condition 8202, as he was not enrolled in a course of study between 17 December 2019 to 23 September 2020. The applicant has advanced several matters that impacted on his ability to study as outlined above. He has said he was suffering mental stress, his grandmother died, is father was ill with a heart condition, he was unable to pay the fess as his family could not send money due to his  father’s illness, he was depressed and suffered emotional and mental difficulties as well as being unable to pay the rent and buy proper food. He also referred to the different study environment in Australia. The Tribunal has considered the above reason for his non- study above but is of the view these do not explain his lack of enrolment for the period of 17 December 2019 to 23 September 2020. It has found he was not in Australia for the purpose of study during the relevant period.

1. Considering the totality of the applicant’s claims regarding the circumstances in which the grounds for cancellation arose, the Tribunal accepts that the applicant was impacted by his father’s illness but not to the extent claimed which led him to be unable to study in the relevant period as well as achieving course progression since November 2017. On the evidence it does not accept that the events advanced by the applicant created circumstances outside the applicant’s control leading to the cancellation of his student visa.

2. Therefore, the Tribunal only attributes them low weight in favour of the applicant.

   Past and present behaviour of the visa holder toward the Department

3. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past. The Tribunal gives this consideration some weight in the applicant’s favour.

   Whether there would be any consequential cancellations under s.140

4. The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor no weight.

   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

5. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

6. If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. It is acknowledged that there may be restrictions on travel that may give rise to further delay in the applicant returning to India, however there are some allowances in legitimate circumstances for relevant bridging visas to extend. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal.

7. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant would have difficulties in obtaining any further visas in Australia. Under PIC 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to  make a valid application for any visa other than those prescribed in reg 2.12. However, those are also intended and legitimate consequences of cancellation.

8. The applicant provided evidence to the Department that there will be legal consequences if his visa is cancelled. He noted he would have to leave voluntarily or be detained. He said he does not have any intention to become unlawful. At the Tribunal hearing he indicated he was aware of the legal consequences.

9. The Tribunal gives this consideration neutral weight.

   Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

10. When asked by the Tribunal whether he had any fear of returning to India the applicant said he did not, he referred to the general violence in his home area. He confirmed that he would not be specifically targeted but that it applies to everyone in his home area. He said that what he fears applies to everyone in his home city. He also referred to his parents being very upset he has not achieved a degree. He said while they will not harm him, he will be isolated and will have to live apart from them and fend for himself. He did not refer to any fear of return in his submission to the Department. While the Tribunal considers his claims to be vague and general, it is of the view that his claims can be fully considered in a protection visa application, which he has not yet made. The Tribunal is of the view that this is the appropriate mechanism for assessing his claims to fear return to India.

11. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

12. The Tribunal gives this consideration neutral weight.

    Any other relevant matter

13. No other relevant information has been raised by the applicant. He said he did not

14. He also referred to not being properly advised by his representative at the Department, however as raised with him via s.359AA there is no evidence that he had an agent at the Department level.

15. He requests a further chance to fulfil his life goal to make his parents proud of his educational achievements. He submits that the family finances are better now, so he would appreciate another opportunity to study.

16. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant. Although it is accepted that there were events that occurred outside the applicant’s control, the Tribunal is also mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period without studying or maintaining enrolment. Further, that the cancellation of the visa is the intended consequence of breach of the relevant condition. Overall, the Tribunal considers that the limited aspects favourable to the applicant do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.

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

    DECISION

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

    Gabrielle Cullen
    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.