RANGU (Migration)

[2020] AATA 2335

RANGU (Migration) [2020] AATA 2335 (25 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SRIDHAR RANGU

CASE NUMBER:  1718332

HOME AFFAIRS REFERENCE(S):          BCC2017/1754255

MEMBER:Peter Newton

DATE:25 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 25 March 2020 at 3:12pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – limited academic progress – postponement of wedding – family bereavement – financial hardship – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 9 August 2017 (Decision) 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 (Act).

2.The delegate cancelled the visa on the basis that the applicant did not comply with condition 8202 imposed on the applicant’s visa by not being enrolled in a registered course of study since 29 September 2016. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3.The applicant appeared before the Tribunal on 22 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telegu (Indian) and English languages.

4.The Decision records that on 7 July 2017 the applicant was notified of the intention to consider cancellation of his visa (NOICC). The applicant’s migration agent provided a written response to the NOICC dated 20 July 2017 (Response).  On the day of the hearing, the applicant provided to the Tribunal a copy of the Response.  I have read the Decision, the Response and considered all of the applicant’s evidence and submissions.    

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 (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.

9.The Response concedes that the applicant’s enrolment in the Masters of Professional Accounting course was cancelled and the applicant has not subsequently obtained admission or enrolment in another course of study.  During the applicant accepted that he has not been enrolled in a registered course of study since 29 September 2016. Accordingly, the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

10.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

11.      The applicant was born in India on 7 September 1988.  The Decision records that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 14 August 2015.  The visa was granted to study in Australia and it was expected that the applicant would do so. 

12.The Response submits that the applicant came to Australia in August 2015 on a student visa in “a course package as below:

a.English for Academic Purpose – 31/08/2015 to 6/11/2015

b.Masters of Professional Accounting – 9/11/2015 to 10/11/2017”.

13.There is no evidence before me to suggest that the applicant’s original intention for travel to and stay in Australia was not for the purpose of study.  I do not think applicants should be given credit for applying for a visa and undertaking studies in accordance with the objects of the Act and Regulations.  In the circumstances, I assess this factor as neutral.  

14.The Response submits that: the applicant successfully completed the English for Academic Purpose course; he thereafter commenced the first semester of the Masters of Professional Accounting (MPA) and failed all subjects; the applicant obtained a deferral of his course of study (from 29 February 2016 to 17 June 2016); he travelled to India on 15 May 2016 and returned to Australia on 20 June 2016; “due to the gap in Sridhar’s studies and as the CoE was cancelled from the University, he could not get admission easily.  Also, due to the intake dates, it got even more delayed and somehow did not get an admission that easily.  Now, if he is given more time, he can prove himself by starting his course afresh.”

15.During the hearing the applicant said that in 2013 he obtained an MBA in finance in India.  He said he wants to gain knowledge in Australia for accounting.  He says he wants to return to India and work as a bank manager.  I asked the applicant if there was anything preventing him from returning to India.  He said that due to personal reasons he could not complete the MPA.  He said he wants to complete the MPA for his parents’ satisfaction.  He said that is the only reason why he wishes to complete the MPA in Australia.

16.The Response submits:

“20. If the visa gets cancelled, Sridhar's family will face not only emotional setback, but the dreams his father has seen to send his son to Australia will be shattered. The client will get a bad name in society (being a person with visa cancellation) and same bad name will carry to his family. This can also impact the health of the client's father as a person with a visa cancellation returning to India is not treated in a good way.”

17.The evidence and submissions establish that the applicant: - came to Australia for the purpose of study when he was almost 27 years of age; only attended studies for the first semester of the MPA which commenced on 9 November, 2015; failed all subjects and ceased studying the MPA course; obtained a deferral of the MPA from 29 February 2016 to 17 June 2016; travelled to India on 15 May 2016 and returned to Australia on 20 June 2016; did not resume studies.  As stated, there is no dispute that the applicant has not been enrolled in a registered course of study since 29 September 2016.

18.As stated, the applicant says that due to personal reasons he could not complete the MPA and he wants to complete the MPA for his parents’ satisfaction.  I do not accept that this provides a compelling reason for the applicant to remain in Australia for the following reasons: - the applicant came to Australia when he was almost 27 years of age after obtaining an MBA in finance in India.  The Response says that he faced a lot of settlement issues, however the applicant has not provided any evidence identifying what those settlement issues were and how they interfered with his ability to study.  The Response says and the applicant gave evidence that he suffered from depression after he returned from India.  However, there is no medical evidence to support this submission and evidence and the applicant did not seek a further deferral of studies on the grounds of depression.  Moreover, the applicant has not provided any evidence of changes he has made since returning to Australia which would provide some confidence that if he is permitted to remain in Australia he now has the aptitude to resume studies and pass all subjects in the MPA course.  There is no evidence that a course similar to the proposed MPA course is not available in the applicant’s home country or region.  There is no reason why the applicant cannot return to his home country and undertake a MPA course in his home country or region to meet his parent’s expectations. 

19.      Having regard to all of the evidence and submissions, I am not satisfied that the applicant has a compelling need to remain in Australia. I attach some weight to this consideration against the applicant.

·     The  extent of compliance with visa conditions

20.      Condition 8202 is a mandatory condition applied to student visas which obliges visa holders to remain enrolled in a course of study and, depending on the course, either meet attendance requirements or meet academic progress requirements.

21.      Student visas (subclass 570-574) are granted for the purpose of studying towards, and achieving, an educational qualification in Australia.  The student visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted a student visa, the visa holder’s primary intention must be to study, maintain enrolment, attendance and course progress, in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course.

22.As stated, the applicant has not been enrolled in a registered course of study since 29 September 2016. I consider this to be significant period of time to not be enrolled. I give some weight against the applicant for the breach of condition 8202(2) by not being enrolled in a registered course of study. 

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

23.

As stated, the Response submits:

“20.     If the visa gets cancelled, Sridhar's family will face not only emotional setback, but the dreams his father has seen to send his son to Australia will be shattered. The client will get a bad name in society (being a person with visa cancellation) and same bad name will carry to his family. This can also impact the health of the client's father as a person with a visa cancellation returning to India is not treated in a good way.”

24.      During the hearing, the applicant said if the Decision is affirmed “it will be a big disappointment”. He said he will disappoint his parents.  He said if he completes his Masters in Australia, he will gain respect in his home country.  He said that if he returns to his home country now, his friends will laugh at and make fun of him.  He said he will have wasted four years and he wants to satisfy his parents.

25.        I have considered all of the applicant’s evidence and submission in relation to hardship for him and his family. There is no evidence that a course similar to the proposed MPA course is not available in the applicant’s home country or region.  There is no reason why the applicant cannot return to his home country and undertake a MPA course in his home country or region to meet his parent’s expectations and repair any damage to his reputation.  Nevertheless, I accept that the applicant and his family will suffer some hardship if the Decision to cancel the visa is affirmed.  I give this factor some weight in favour of the applicant.

·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  

26.      In relation to the circumstances in which the ground of cancellation arose, the Response makes the following submissions:

1.When Sridhar arrived in Australia, he was all set to go further with his educational plans and commenced his course of English for Academic Purpose which he even completed successfully.

2.Everything was going on well and Sridhar commenced his course of Masters in Professional Accounting from Charles Stuart University, Sydney. But due to initial settlement issues, he could not do well academically.

3.This resulted in him failing in all the subjects which he enrolled. Being a good student and a Masters level graduate from India, Sridhar was very upset with his low academic scores.

4.Sridhar hails from a good family in Telangana state, India. The client's father Thirupathi Rangu works as a Sub-inspector of Police in Warangal, India, He holds a good name and reputation in the society. He has an elder brother who works as a Software Engineer in Infotech Software Solutions Pty Ltd, His family always gives highest priority to education. Sridhar's parents were worried that he is alone and has been suffering very badly and his career is also getting affected.

5.The client's family felt that it is important that Sridhar gets a company so that he can have a moral support and can be in a homely environment which will give him a proper study atmosphere and a good family life.

6.With this idea to make his life better, Sridhar's family decided to get him married which will make him feel better. The wedding was fixed on 25 May 2016. As his health condition was not good and he also had to visit India for his wedding, he took a semester break from his studies. Being a responsible student, he visited the University and explained them the situation. They understood and granted him a break. (Evidence attached)

7.He went to India on 15 May 2016 for his wedding. All the preparations were done and suddenly they got the biggest shock in their family. Sridhar's grandmother passed away on 20 May 2016 which was just 5 days before the wedding ceremony.

8.In Indian culture, if there is a death in the family, all the auspicious ceremonies will be stopped and will not be conducted for the next one year. This way, their wedding was also called off and it was decided that the wedding will be postponed and will be fixed after one year.

9.This incident affected both the families of the bride and the groom. Seeing all of them feel bad made Sridhar even more depressed and he came back to Australia on 20 June 2016.

10.After coming back to Australia, Sridhar felt very lost and found it very hard to get back to life. He was in a very bad state of depression where he was clueless about his career and personal life.

11.Sridhar's claims that his parents asked him to consult the doctors for improvement of my health but he did not even go out. Seeing his condition, his parents asked his family doctor back in India to give him regular counselling sessions on Skype calls.

12.During all this happening in his career, his father started falling ill and did not work for a very long period after his grandmother's death. A lot of expenditure had been done on the wedding preparations and once his father was sick, the family did not have a stable income in the family.

13.This was a very bad phase for the family as they suffered a very serious financial crisis. This was also affecting Sridhar's admission here as it was getting very hard for the client to afford his fees and get an admission.

14.Being an MBA graduate with 1 year of good work experience, Sridhar found himself in a very bad situation where he felt helpless and wanted to put his career back on track.

15.Sridhar even contacted a few education agents also to know how to proceed next with his studies and continue the course.

16.Due to the gap in Sridhar's studies and as the COE was cancelled from the University, he could not get admission easily. Also, due to the intake dates, it got even more delayed and somehow did not get an admission that easily. Now, if he is given more time, he can prove himself by starting his course afresh.

17.He can provide evidences for supporting his circumstances if given more time and will also get an admission in an education provider to give his career a new start.

18.I hope the Department of Immigration and Border protection will understand my client's situations and give me some time to provide the required documents.

19.Sridhar has hereby presented his case and circumstances and has promised that he will start afresh and will fulfil the responsibilities as a genuine student.

20.If the visa gets cancelled, Sridhar's family will face not only emotional setback, but the dreams his father has seen to send his son to Australia will be shattered. The client will get a bad name in society (being a person with visa cancellation) and same bad name will carry to his family. This can also impact the health of the client's father as a person with a visa cancellation returning to India is not treated in a good way.

21.This is a case of a student who has faced a hard life, regretting about his unfortunate past and making efforts to return to study. If DIBP gives Sridhar a chance and his visa stays in place, he commits that he will continue to study. In fact, this will be an example for other students facing similar problems that DIBP gives a helping hand to students in need of motivation and support.

22.Sridhar regrets what he has undergone and promises to study as a genuine student if given a chance. He commits to go back after completing the study.

23.Client is also requesting if he can be granted further extension to provide relevant documents and obtain an appropriate English score to obtain an admission. Though we have explained him the legislation, but he is insisting to put forth the request.

27.      The first matter the applicant relies upon for causing or contributing to the cancellation of his visa is “due to initial settlement issues” [paragraphs 2 and 3 of Response].  The applicant came to Australia for the purpose of study.  He had obtained an MBA in Finance in India prior to obtaining his student visa.  He was approximately 27 years of age when he first arrived in Australia.  There is no evidence of what these initial settlement issues were, how long they lasted and how they interfered with the applicant’s ability to study. For these reasons I give no weight to this matter or submission.

28.      The second  matter the applicant relies upon for causing or contributing to the cancellation of his visa is “Sridhar’s grandmother passed away on 20 May 2016” which caused the applicant’s wedding to be called off or postponed, affecting both the families of the bride and groom which made the applicant “even more depressed” [paragraphs 7 to 9 of Response]. 

29.      I accept the applicant’s grandmother died on 20 May 2016 and this would cause disruption and sadness to the applicant and his family.  However, by this time the applicant had ceased studying, obtained a deferral of his studies from 29 February 2016 to 17 June 2016 and there is no evidence that the sadness or depression caused by the death of the applicant’s grandmother prevented the applicant from resuming studies when he returned on Australia on 20 June 2016.  During the hearing, the applicant indicated that when he returned to India, he discovered that his fiancée had obtained a Visa to the United States, they had an argument and she informed the applicant that their relationship was over.  The applicant’s evidence did not support and contradicted the submission that his grandmother’s death caused the wedding to be called off or postponed. 

30.      The Response submits that the applicant’s “parents asked his family doctor back in India to give him regular counselling sessions on Skype calls.” [Paragraph 11 Response].  The applicant did not give any evidence about this treatment.  There is no medical evidence that the applicant was not able to continue with or resume studies due to depression.  There is no evidence that the applicant informed the University where he was enrolled to study the MPA that he was having difficulties studying due to depression.  The applicant did not seek a further deferral of study from the University on the grounds of depression.  The applicant returned to Australia on 20 June 2016 and in my view had sufficient time to resume studying or seek a further deferment of his studies before his enrolment was cancelled on 29 September 2017.  For the reasons in this and the preceding paragraph [29], I give no weight to the submission that depression arising from the death of the applicant’s grandmother caused or contributed to the applicant’s enrolment being cancelled and the consequential cancellation of his visa.

31.      The third matter the applicant relies upon for causing or contributing to the cancellation of his visa is his father “started falling ill and did not work for a very long period after his grandmother’s death”, “the family did not have a stable income in the family”, “This was a very bad phase for the family as they suffered a very serious financial crisis” and “This was also affecting Sridhar’s admission here as it was getting very hard for the client to afford his fees and get an admission”.

32.      During the hearing, the applicant did not give any evidence to the effect that his father’s illness and loss of income affected his ability to study and prevented him from enrolling in a course of study.  There is no evidence that the applicant informed the University where he was enrolled to study the MPA that he was having difficulties studying due to the illness of his father or he could not afford the course fees.  The applicant did not seek a further deferral of study from the University on the grounds of the illness of his father or financial reasons.  The applicant was entitled to work part time whilst he was studying and there is no evidence that he could not obtain funds to meet the course fees.  Furthermore, on 7 July 2017 the applicant was issued with the NOICC due to his non enrolment since 29 September 2016.  In my view, the applicant had sufficient time to re-enrol in a course of study before the visa was cancelled on 9 August 2017.  The fact he did not do so, indicates he is not a genuine student.  For these reasons, I give no weight to the submissions that the applicant’s father’s illness, loss of income and the family’s financial crisis caused or contributed to the applicant’s enrolment being cancelled and the consequential cancellation of his visa.

33.      In addition to the above submissions, during the hearing, the applicant indicated that when he returned to India, he discovered that his fiancée had obtained a Visa to the United States, they had an argument and she informed him that their relationship was over.  He said he had known his fiancée since childhood and he went into depression for a year.  He said he did not receive treatment for his depression.  The applicant said he now feels good and wants to do his Masters.

34.      As stated, on the day of the hearing, the applicant provided to the Tribunal a copy of the Response.  The Response does not mention or make any submission to the effect that the applicant’s finance obtained a visa to the US and ended their relationship.  There is no evidence that the applicant informed the University where he was enrolled to study the MPA that he was unable to study due to depression arising from the breakdown of his relationship with his fiancée.  The applicant did not seek a further deferral of study from the University on these grounds.  In response to the NOICC, the applicant did not inform the Department that he was unable to study due to depression arising from the breakdown of his relationship with his fiancée.  For these reasons, I have reason to doubt the applicant’s evidence to the effect that he was unable to study due to depression arising from the breakdown of his relationship with his fiancée and I give no weight to this evidence and submission.

35.       The applicant chose to stay Australia without enrolling in a CRICOS registered course of study. The applicant has not provided any evidence that he tried to rectify his situation by contacting the Department. The grounds for cancellation arose when the applicant failed to maintain his enrolment in a registered course of study since 29 September 2016.  Having regard to all of the evidence and the submissions, I am not satisfied that the circumstances in which the grounds of cancellation arose provide reason not to cancel the visa.

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

36.      There is no information to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department of Immigration.  There is no evidence the applicant has been uncooperative with the Department of Immigration.  He promptly responded to the NOICC.  In my view, all applicants and visa holders should be co-operative towards the Department of Immigration and I do not think an applicant should be given credit for doing what is expected or required.  Accordingly, I assess this factor as neutral. 

·Whether there would be consequential cancellations under s.140

37.      There are no dependant visa holders.  Accordingly this factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

·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

38. If the Tribunal affirms the decision to cancel the applicant’s visa, the applicant will be an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart from Australia.

39.       Additionally, the applicant will be subject to section 48 of the Act which means that he will have limited options to apply for further visas in Australia. 

40.       The applicant will also incur a penalty in that he will be subject to a three (3) year exclusion period, where he may not be eligible to have any temporary visa application approved if he applies for a visa that is subject to Public Interest Requirements 4013.

41.      It is not unreasonable for a person to be subject to administrative sanctions as a result of having their visa cancelled due to non-compliance of visa conditions.

42.       The Tribunal accepts that there is hardship in the form of mandatory legal consequences if it affirms the decision to cancel the applicant’s visa.  It is not unreasonable for a person to be subject to administrative sanctions as a result of having their visa cancelled due to non-compliance of visa conditions.  This hardship is the intended consequences of the legislation and accordingly I assess this factor as neutral. 

·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

43.      The circumstances of this case are not such that would engage Australia’s International obligations and the cancellation if the visa would not lead to a breach of Australia’s international obligations.  I therefore assess this factor as neutral. 

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

44.      This factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

·Any other relevant matters.

45.       I am not aware of any other relevant matters in relation to the Tribunal’s consideration of whether the visa should be cancelled.  

Conclusion

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

DECISION

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

Peter Newton
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.