PUTTA (Migration)

[2020] AATA 2737

PUTTA (Migration) [2020] AATA 2737 (3 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BHANU PRAKASH PUTTA

CASE NUMBER:  1827285

HOME AFFAIRS REFERENCE(S):          BCC2018/2434354

MEMBER:Wendy Banfield

DATE:3 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 03 June 2020 at 12:42pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – non-genuine student – 15 months study gap – deviation from study plan – consideration of discretion – extent of non-compliance – life stressors – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(fa) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant appeared to be a ‘non-genuine student’ and his primary intention was not to study. This was because he was not enrolled in a registered course of study for 15 months and did not follow the study plan as indicated in his student visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of India and is currently 25 years old. He first arrived in Australia on 26 September 2016 as the holder of a Subclass 500 student visa that was valid until 13 September 2018. The visa was granted to the applicant for him to study a master’s degree. Since his arrival, the applicant has not maintained enrolment and has not completed the course for which the visa was granted.

4. The applicant submitted evidence to the Tribunal as follows:

   ·     letter of offer and acceptance from GCA College;

   ·     offer acceptance form, invoice and receipts from Holmes Institute;

   ·     copy email dated 6 September 2018 to the visa cancellations officer and email to the applicant of 13 September referring to the submission to the Department;

   ·     letter from GCA College dated 27 August 2018 regarding orientation;

   ·     copy email to the applicant 18 July 2018 regarding an English assessment;

   ·     emails between the applicant and GCE College in relation to his enrolment and visa status;

   ·     letter from the applicant’s social worker dated 5 September 2018;

5. The applicant appeared before the Tribunal on 29 January 2020 to give evidence and present arguments.

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

   The hearing

7. The applicant advised the Tribunal he graduated in Information Technology (IT) with a bachelor’s degree in India and worked in that field for 15 months. He decided to study in Australia to gain further experience. The applicant enrolled in a master’s degree at Charles Sturt University. He said he was not prepared for the new environment and was being taught about software he had not heard of. After he attended four or five classes, he said he lost hope and decided to transfer to another college. When the Tribunal asked him to clarify what his difficulties were the applicant said he had to take courses he was not familiar with such as networking.

8. According to the applicant he decided to enrol in an MBA as it is more theoretical. He said he wanted to work in a multinational company in India in either a technical or management role. The applicant said he has friends who are working in India and it is his father’s dream. He applied to study at Holmes Institute and paid half the fees. When he went to the college, he was told the census date had passed and he was not able to enrol. He said when he first visited the college there were too many people there and he had decided to come back the following week, however, he later learnt he was too late. The applicant asked the college to transfer his fees to the next semester and he would take another course in the meantime but claimed he was told he could not transfer fees between courses and would have to pay for an English course outright. He said the college told him they could not negotiate with a person who is in breach of their student visa. The Tribunal then discussed the payment receipts and email correspondence between him, and the college and the applicant explained he did not have a CoE at the time.

9. The applicant explained he had a girlfriend in India, and she followed him to Australia in 2017, also as a student. He said soon after she arrived, she began to avoid him, and he was depressed. According to the applicant his girlfriend was from another caste and her family would not have allowed them to marry. He said he thought they could start a new life in Australia but because of his study difficulties the girl was concerned about her future and became distant. The applicant referred the Tribunal to messages about his relationship problems. He said during 2017 he had issues with Holmes Institute, and he was quarrelling with his girlfriend. In 2018 the applicant learnt his younger sister was getting married in India and his father was unable to help financially. The applicant said he was told he would have to support himself in the meantime.

10. The applicant said he was unable to return to India for his sister’s wedding despite his father offering to pay for a ticket. He said he bluffed to his family that he had exams but in fact, he did not have a CoE and could not risk travelling. He said he knew his girlfriend was not coming back, so he decided to work on his depression because he had turned to smoking and alcohol. He referred the Tribunal to a report from a social worker that he had consulted in September 2018. At this time, he received counselling notification of cancellation from the Department. According to the applicant he received counselling and then applied to another college. The applicant claimed he consulted an agent who was asked to respond to the Department’s Notice of Intention to Consider Cancellation (NOICC) of 31 August 2018 and referred to a screenshot dated 6 September 2018 from the agent. However, he said the Department claimed there had been no response.

11. The Tribunal asked the applicant about his enrolment in a Master of Business Administration (MBA). He said he received a new CoE after receiving the NOICC but it was a coincidence and he had been waiting to re-enrol. The applicant claimed he had completed the English requirements previously and made several attempts to re-enrol. The applicant said after his visa was cancelled, he held a Bridging visa E with no study or work rights and he also lost the fees he had paid. The applicant then referred to having a friend working in a car wash in Newcastle who he sometimes ‘helped’ and on one occasion border force officers attended and asked for his visa details. The applicant said he told the officers he was not a continual worker and was just helping because he had smoking and alcohol issues and sometimes borrowed money from his friend. He was told he could not work and was advised to apply for work rights which he did, and the rights were granted.

12. The applicant said he was advised to take a diploma course in the meantime, but he did not want to because he considers himself a master’s student. He said he lost time trying to regain admission. The applicant said he had not been aware he could apply for study rights. The applicant advised he was angry with his agent as he was told a response to the NOICC had been sent. The applicant accepted he had been in breach of his student visa. He then referred to the period of only five days to reply to the NOICC.

13. The Tribunal accepted the applicant had come to Australia to study. Regarding any compelling need to remain, he said he could not go back to India without a degree as he would be humiliated before his family. The applicant said he needs to complete a degree to go back to India and pursue his dreams. According to the applicant he has not told his father that he has not been studying. The Tribunal asked the applicant why he lived in Newcastle when he was studying in Sydney. He said he had friends who provided accommodation and assisted with finances.

14. As to the degree of hardship that may be caused by visa cancellation, the applicant said he is the only person who can look after the family in the years to come as his sister is married. The Tribunal asked the applicant why he was not able to take post-graduate degree in India. He said while there are universities that offer them, they are theoretical while in Australia there is the opportunity for global exposure. Also, there are different standards and less demand for an Indian degree. The applicant claimed he has the ability to take a master’s degree in Australia. He said although he faced issues previously and has failed many times, he want to prove himself.

15. The applicant confirmed there are no consequential cancellations in his case. The Tribunal explained the legal consequences of cancellation and he indicated he understood. The applicant repeated he wanted to prove himself and said previously matters were out of his hands. Regarding any international obligations, or civil or political issues in his home country, the applicant said there were none.

16. The applicant referred to the 15-month gap when he was not enrolled to study and said he had tried to re-enrol but it did not go well. The applicant said he can study and used to teach students in India. He said he was confident and passionate three years ago. The Tribunal then put the Departments decision record and the PRISMS record to the applicant in accordance with s.359AA. It was explained that if the Tribunal relies on the information, it may lead to the decision under review being affirmed. The applicant was given copies of the Department’s decision and PRISMS record. He was advised he could ask for time to respond and the Tribunal would consider the request and may either adjourn the hearing or provide time after the hearing to respond.

17. The applicant indicated to the Tribunal that he had seen a copy of the Department’s decision. When asked whether he wished to comment he said the Department did not consider his agent’s submissions that were sent in time in response to the NOICC. He said he had genuine reasons for not studying and he will be a genuine student again if he is granted his visa and will be able to progress his career. The applicant reiterated he had a screenshot from his agent to show a response to the NOICC had been provided.

18. 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

19. The issue in the present case is whether the applicant, as the holder of a student visa, is not, or is likely not to be, a genuine student and whether the applicant’s Subclass 500 student visa should be cancelled under s.116(1)(fa)(i) of the Act.

20. The applicant arrived in Australia on 26 September 2016 as the holder of a student visa and was enrolled in a Master of IT from 7 November 2016 to 9 November 2018. On 30 May 2017 the applicant’s enrolment in the Master of IT was cancelled for ‘student notifies cessation of studies.’ After receiving notice of possible visa cancellation, on 27 August 2018 the applicant enrolled in an MBA. At the time his visa was cancelled the applicant was enrolled in a master’s degree but by the time of the hearing the enrolment had been cancelled.  The applicant claimed it was a coincidence he obtained a new CoE after receiving the Department’s NOICC letter but did not dispute there were grounds to cancel his visa. On the evidence before the Tribunal, the applicant discontinued his principal course, did not study for 15 months and only sought re-enrolment after receiving notice of possible cancellation. This indicates the applicant is not a genuine student and there are grounds to cancel the student visa.

    Consideration of the discretion to cancel the visa

21. Having found that the applicant is likely not to be a genuine student, 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 Procedural Instruction ‘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

22. The applicant arrived in Australia in 2016 and was initially enrolled to study a master’s degree. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to Australia was to study. However, it appears the applicant’s purpose changed once he arrived and found the course he had enrolled in difficult. His subsequent behaviour in failing to maintain enrolment or complete the course he indicated he would take in his visa application suggest he is no longer a genuine student.

23. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant advised he must have a degree when he returns to India otherwise it would be humiliating for him and his family. The applicant explained he has not told his father that he has not been studying. He gave evidence that he told his family he could not return to his home country for his sister’s wedding because of exams when in fact he was not enrolled to study. The Tribunal considered the applicant’s submission. The applicant’s decision not to consult with or inform his family in his home country about study and relationship issues is a personal matter for him. In addition, the Tribunal is unable to place weight on his unsupported assertions about the need for a master’s degree. The Tribunal finds the applicant has not demonstrated a powerful or convincing reason for needing to stay in Australia and is not satisfied there is a compelling need for him to remain.

    ·     the extent of compliance with visa conditions

24. The applicant gave evidence at the Tribunal hearing that while holding a Bridging Visa E without work or study rights he helped a friend who was working at a car wash. The applicant explained that the premises was visited by border force officers who advised the applicant he was not permitted to work without applying for his visa conditions to be changed. The applicant said he subsequently made the application and was granted work rights. The applicant claimed he had ‘helped’ his friend at a car wash because he had problems with smoking and alcohol and the friend gave him occasional small amounts of cash. The Tribunal finds that engaging in work without the right to do so together with failure to maintain enrolment or continue a principal course of study indicates the applicant is likely to not be a genuine student and this weighs against the applicant in this case.

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

25. The Tribunal discussed with the applicant any hardship that may arise as a result of his visa being cancelled. The applicant claimed that since his sister is married, he will have responsibility for looking after the family in future. The Tribunal asked the applicant whether he would be able to undertake post-graduate studies in India. He said while master’s degree courses are available, they are mostly theoretical. He said that in Australia there is the opportunity for more experience and due to different standards, there is less demand for an Indian degree in his home country. The applicant has not completed the course he came to take and he gave evidence during the hearing of having lost fees paid to education providers after discontinuing his studies. The Tribunal considered the applicant’s evidence overall and accepts there will be a degree of hardship caused by the visa being cancelled. The Tribunal has given some weight in the applicant’s favour in considering this criterion.

26. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

27. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not maintain enrolment or complete his course of study. The applicant’s reasons for this was first, because he found his Master of IT course difficult and he decided to change his study path and second, because his relationship with his girlfriend broke down. The applicant submitted a letter dated 5 September 2018 from a social worker that followed several appointments he had between June and August 2018. The report briefly sets out the applicant’s background and his relationship with a girl from India. It reports that the applicant’s relationship did not continue despite both parties having travelled to Australia (separately) as students with the intention of marrying. The applicant attributed his neglect of his studies and mental health problems to this event and self-reported having attempted suicide. The applicant was assessed as having an adjustment disorder affecting his day to day life and his studies. The Tribunal accepts the applicant may have encountered some study difficulties and personal problems during his temporary residency in Australia.  While they may have been stressful life events, they are not adequate reasons for the applicant to remain in Australia while failing to comply with the conditions of his student visa over a long period of time.  

28. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study, seek compassionate leave or a deferral of his studies during the period when he was not enrolled.  Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

29. The Department had stated in its decision record that there had not been a response to the NOICC letter. The applicant claimed his agent had responded and a screenshot of an email was provided listing a series of attachments. However, the Department records do not indicate any response was received and the applicant did not provide the Tribunal with the material he claimed to have submitted. Whether the applicant’s agent did provide a written response or not, the Tribunal considers the applicant has had an opportunity to respond to the issues concerning his visa cancellation at a hearing and the merits of the case have been assessed fairly.

    ·     past and present behaviour of the visa holder towards the department

30. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

31. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

1. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

   ·     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

2. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. During the Tribunal hearing the applicant advised he does not have any children.

   ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

3. The Subclass 500 Student Visa is not a permanent visa.

   ·     any other relevant matters

4. There are no other relevant matters to be considered in the applicant’s case.

   Conclusion

5. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia without completing his principal course of study to be significant. The Tribunal is not satisfied the issues encountered by the applicant are enough reason for the visa not to be cancelled.

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

   DECISION

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

   Wendy Banfield
   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.