Puttapati (Migration)

[2020] AATA 4195

Puttapati (Migration) [2020] AATA 4195 (7 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sravan Kumar Puttapati

CASE NUMBER:  2001499

HOME AFFAIRS REFERENCE(S):          BCC2019/4945374

MEMBER:Wendy Banfield

DATE:7 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 07 October 2020 at 7:02pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – enrolment in lower-level course cancelled by education provider – family and relationship issues – no approach to education provider – work experience in home country and Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 January 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 (the Act).

2. The delegate cancelled the visa on the basis that the visa holder had not been enrolled in a registered course since 27 July 2018 and therefore had not complied with the requirements of subclause (2)(a) of visa condition 8202. 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 31 years old. He came to Australia in 2012 to study a Master of Professional Engineering at the University of Wollongong. After completing his post-graduate studies, the applicant was granted a Subclass 485 Temporary Graduate visa. He later enrolled in a Diploma and Advanced Diploma of Leadership and Management and was granted a further Student visa; however, those enrolments were cancelled by the education provider.

4. The applicant appeared before the Tribunal on 28 July 2020 to give evidence and present arguments.

5. Prior to the hearing the applicant submitted the following documents: written submission dated 14 July 2020; evidence of studies in Australia and India; passport information; overseas student health cover; Indian divorce papers (in relation to the applicant’s brother); medical evidence in relation to the applicant’s mother; medical certificate in the name of the applicant dated 20 January 2020 (without letterhead or medical practitioner’s name being legible); Department’s Notice of Intention to Consider Cancellation (NOICC).

6. The applicant provided a response to the Department’s NOICC on 22 January 2020 and attached documentary evidence. The Tribunal has considered that information in making this decision.

7. 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

8. 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?

9. 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 full time registered course: 8202(2)(a)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

11. According to the evidence the applicant failed to maintain enrolment in a full-time registered course of study from 27 July 2018 to 7 January 2020 when the Department issued a NOICC, a period of nearly 18 months. At the Tribunal hearing the applicant agreed there had been grounds to cancel his visa. Therefore, on the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course and had not complied with visa condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

12. 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 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

13. The applicant arrived in Australia to study a master’s degree which he completed in 2016. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

14. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant claimed he wants to study management courses to enable him to have a business in India. According to the applicant, he is planning to go into business with his brother. In his written response to the Department the applicant claimed: “I need a chance to get my life back on track. I was always a genuine student with genuine intentions to study and build career but life got in the way.” In his written statement to the Tribunal the applicant makes several general references to his wish to complete his studies and claims: “…it is my career goal to achieve good educational qualification and become capable of building a bright career”. The applicant does not provide specific or satisfactory details about his career plans or why he still wants to complete diploma level courses when he holds high level bachelor’s and master’s degrees. The applicant has admitted that in addition to his tertiary qualifications, he has work experience in India and Australia. As such, the applicant has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

15. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

16. During the hearing the applicant claimed he would suffer emotional hardship in the form of depression if he is unable to complete his studies in Australia. In his evidence the applicant also referred to having paid fees for his diploma course and to his desire to complete management studies in Australia. In his written statement to the Tribunal the applicant claims:

    Without getting this education I will be helpless and my career will fail. Currently I am hanging on a thread, it is of immense importance that I get to complete my studies. I request the department to take this matter into consideration and grant me to complete my education without which I wouldn't be able to achieve my career goals.

17. The Tribunal is not satisfied the applicant’s “career will fail” if he does not complete diploma level courses since he holds bachelor’s and master’s degrees. Most of the applicant’s submissions in writing and in person at the Tribunal hearing relate to hardships he experienced prior to his visa being cancelled and there were minimal submissions about the degree of hardship that may be caused as a result of visa cancellation. Nevertheless, the Tribunal accepts the applicant will not be able to continue studying or residing in Australia if his visa is cancelled and he will suffer some degree of hardship. The Tribunal gives some weight in the applicant’s favour when assessing this criterion.

18. 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. The Tribunal has assessed the claims and evidence in the applicant’s case and has accepted there will be a degree of hardship to the applicant if his visa is cancelled, however, the intended consequences of the legislation do not outweigh the other considerations in this case.

    ·     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

19. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for a period of nearly 18 months, from 27 July 2018 to 7 January 2020. The applicant claimed this occurred because of compelling circumstances, specifically, his brother in India having been through a divorce, his mother suffering ill health, his grandmother passing away and his girlfriend cheating on him. He also indicated he suffered from depression as a result of these matters. In his statement the applicant said that due to his brother's difficult period he had to visit India twice to support the family. The applicant also claimed the college he was enrolled with did not issue any warning or indication his COE may be cancelled. No evidence was provided of any communications either from the applicant to his college or from the college to him to support his claims. For this reason, the Tribunal is not satisfied the education provider did not comply with its obligations to the applicant before cancelling his enrolment. The applicant did not submit evidence of having applied for compassionate leave for any reason, or that he sought advice from the Department or elsewhere about his circumstances.

20. The applicant claimed he suffered from depression as a result of his brother’s divorce, his mother’s health, his grandmother’s death and his own relationship issues. During the hearing when asked if he sought help for his mental health, the applicant said he did not want to leave the house. The applicant did provide a letter stating he had engaged in telephone counselling (and a face to face session) with a physician in India. However, the medical letter is on plain paper without letterhead, the signature is not discernible and there is what appears to be a hospital stamp that is also not able to be identified. The Tribunal places minimal weight on the applicant’s claims of having suffered from a mental health condition such that he was unable to study or attend to his responsibilities due to events in his personal life.

21. The Tribunal accepts the applicant may have faced some personal or family problems while holding a Student visa and residing in Australia. The evidence supports the applicant’s claims that his brother was divorced, and his mother sought diagnosis and treatment for some medical conditions. Nevertheless, the applicant’s response to these matters was within his control. The issues the applicant encountered are life events that many people deal with at some point. Although they are stressful events, they are not adequate reasons for the applicant to stay in Australia while failing to comply with the conditions of his student visa and failing to study over a long period of time. The applicant did not study or seek appropriate leave from his studies while holding a student visa in breach of visa conditions. The conditions of the applicant’s student visa required him to maintain enrolment which is a strict requirement and was his responsibility as the visa holder. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

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

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

    ·     whether there would be consequential cancellations under s.140

23. 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

24. 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. There is no evidence to indicate the applicant may be subject to indefinite detention as a consequence of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation do not outweigh the other considerations in this case.

    ·     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

25. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.

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

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

    ·     any other relevant matters

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

    Conclusion

28. 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 most considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant outweigh the grounds for the visa to be cancelled.

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

    DECISION

30. 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.