Rulhan (Migration)

[2021] AATA 2198

Rulhan (Migration) [2021] AATA 2198 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anurag Rulhan

CASE NUMBER:  1924217

HOME AFFAIRS REFERENCE(S):          BCC2019/2338391

MEMBER:Joseph Lindsay

DATE:11 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 11 May 2021 at 5:23pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to the non-compliance – depression – financial problems – 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 20 August 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. On 12 October 2020 the applicant attended a hearing by audio with the Tribunal. The applicant’s representative also attended the hearing by audio with the Tribunal. The applicant did not require the assistance of an interpreter.

3. 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

4. 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?

5. 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).

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

7. As part of his application for review, the applicant provided a copy of the delegate’s decision to the Tribunal and the Tribunal has considered the information in that decision.

8. In the hearing, the applicant indicated that he had read and understood the delegate’s decision record dated 20 August 2019.

9. The applicant agreed that he had not been enrolled in a registered course of study since 10 July 2018 and that there were grounds for cancellation of his student visa.

10. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 10 July 2018. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

11. 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 circumstances in which the ground for cancellation arose

12. In the hearing, the Tribunal discussed the applicant’s circumstances and asked him why he had not been enrolled in a registered course of study since 10 July 2018.

13. The Tribunal referred to the email the applicant had provided to the Department in his response to the Notice of Intention to Consider Cancellation (NOICC) dated 19 February 2019 in which he stated the following:

    My name is Anurag Rulhan and this is my request to reconsider your decision of cancelling my visa because of my person life struggles.

    I was born and raised in India. I finished my high school there with 88 percent in Grade 10 and 85.2 percent in Grade 12. I was looking through options of studying civil engineering in India and overseas. I applied for the program in couple of universities in India and Australia. I was offered admission in University of Adelaide with a scholarship. That was the happiest day of my life. The university was ranked one of the highest in Australia and was very researched oriented. Being a fairly studios kid with high aspirations for education and making a better world to live, I was really excited so enrolled and came to Australia.

    My first couple of years in Australia were a mix of homesickness, hope and disappointment. I had never lived apart from my family and was not a guy with a lot of friends. The isolation was harsh and made me lose grip on a lot of things. I struggled but wasn’t sure how to make things correct. I was so distracted and anxious I was thinking maybe Australia is not right for me or maybe civil engineering is not right for me. I was not doing well with the studies or with finances. My dad paid for my tuition fee and I was working 10-12 hours a week but was chewing more than I could bite. Different people gave me different ideas and different opinions. Being very disturbed and anxious of my results and overall handling of situations, I started panicking and rushed to get my life together.

    Things got worse in studies and finances got out of control. I jumped from civil engineering in Uni Adelaide to commerce degree in Melbourne so as to make things work. I thought maybe I’m in wrong city and in wrong course. But being from engineering background I quickly figured if I was confident of anything it might be something that I have already studied in. So, I opted back in Civil engineering in UniSA. I stayed there for two semesters but had already invested so much time and my parents’ money with no outcome yet, I got awfully depressed. Depression hits hard and hit in different ways to different people. Depression costs people their job, their health, relationship, future, helplessness, isolation, hopelessness to name a few. It can make people change their personality that they cannot themselves identify. It can make someone feel isolated and make them feel like they are observing life rather than living it. And not to say, it sometimes takes peoples live. In my case as well, it was severe. It made me isolated and oblivious with depressing, hopeless thoughts. I was not in my senses at all and that affected my relations with my few friends I have had in Australia and with my parents. They were worried if I was doing fine and I was so worried that I’m letting my parents down.

    In July 2018, my UniSA COE got cancelled and I lost all my hope and cringed. I was so depressed that I felt I’m very useless. I felt so sorry for my parents that they are so unlucky that I was their son. They weren’t at mistake and were doing everything of their capacity to make me a successful person and I was doing so bad that I felt that I have no purpose to live. I could feel that I was in deep depression and I could look my self going into the state that I might never come out of. I could think why people attempt suicide or why people just go away forever or how sometimes, situation arises that one is so hopeless that everything they try to make their life better, it goes bleak.

    I cried all day and was in my room all time. I was oblivious and wanted to go back to India and tell my parents that I’m sorry you’re so unlucky that your kid has given you just sorrows and could not keep up the hopes that you had in your kid. But as I hadn’t told my parents what I’m going through, I was scared of telling them the truth and was bipolar all the time.

    In between these events, I got to know that:

    • My dad’s salary was cut to up to 32.5 percent.

    • my closest uncle was diagnosed with cancer and ultimately left this world in late December

    • My partner and I had to make a decision of abortion of our child due to our life’s circumstances

    • my closest aunt died due to health issues in early April.

    My life in Australia was already so down and with these subsequent events taking place around me and my family in India I lost all hope and spend weeks without talking at all to anyone about anything and crying. I was not eating, working, studying or doing anything and was in a state where I could not think properly.

    When these events happened, I lost almost 15kg in a course of two months due to depression. At this time, one of my friend came to my house and noticed I was very weak physically and that I was oblivious of my state of mind. He suggested me to see a doctor as he thought I might have some health issues. I went to my doctor and he asked for specific tests and when the result came he saw I had no disease. Then he asked how I was doing in life, I was very ashamed of my condition I gave him a little glimpse of what was happening in my life, he said these are symptoms that you have depression and anxiety adjustment issues from last two years. He asked me to seek a therapist for my mental stability. I went home and figured I have destroyed my life and there is no purpose to live. The whole thing had gotten so out of my hand.

    In between I met a girl named Niki Patel, who is doing master’s in data science from UniSA. When I met her, she was also fighting with her anxiety issues as she had experienced domestic violence lately. I was a support to her and she was the only support to me. We recently registered our de facto relationship in June and have each other’s back. She is so supportive and got to know about my whole situation and she helped me to talk to my dad and to the path where I can see myself getting out depression. I was in such emotional, educational and financial crises but she tried to bring out the best from me. She suggested me to enroll in some course that would give me lifetime skill and good return to the community. I want to learn a skill and implement in a way I can benefit the community in a good way. When I was coming out my depression and oblivious state and started to better my relations with my family and better educational, mental and financial state, before I could figure what actually has happened in my last 4 years and what I need to do and what not, I got a notification from the department of home affairs about intention to cancel my visa.

    Also, I have just applied for courses in different institutes and will probably get a COE and start studying by the time I get my result for this NOICC outcome that will give me the education I need, and also will be lawful complying with the laws required in Student visa. I have given good thought on how my future should be, I want to learn some skill from Australia that will not only help me to land a decent job in India but also so that I can make my parents and my partner proud. I’m unsure and anxiety is already hitting me of the thought I might be seeing my parents hopeless and sorrowful face and my partners’ broken heart, and this is something I can never take in my life.

    If my visa is canceled and I go back to my country, I will further hit another level of depression. I am starting to naively figure what has happened and what I need to do now but cancellation of my visa, it will throw me back where I came out from or worse, it will put me in the pit that I would rather want to die because I don’t know I just can’t live with this. Not only I will severely affect my mental state, it will have intense depressing effects on my parents’ mental state as they have invested near to AUD 100,000 in my Australian studies and even more important, they had a lot of hopes that I will do something good with my life. Just like my parents, Niki Patel, my partner, will also be deeply affected by the decision. We have got such good tuning that we both can’t imagine our life without each other. We have dreamt of living together all our life. We have dreamt of our tiny house together and our kids together once we settle down. Just how my depression affected me in my studies, I don’t want my partner to go through the same path when she will not be with me. She’s doing great in her studies and works in IT field in UniSA. She already is struggling with her daily life with the thought that we might have to separate for few years. She wants to live with me her whole life at the same time I don’t think my partner should leave her studies and her valuable international work and cultural exposure because of me. But I fear, due to recent domestic violence case and abortion, she is more emotionally dependent on me. This decision will affect so many people so deeply I request you to please reassess my situation and give me one chance to get my life together and work on my dreams. I am not saying that I have not done anything unlawful while I’m on my student visa but that my mental state had made me so oblivious and depressive that I have no conscious hold of it. I have finally started to come in momentum, but this decision will get me into same hole of delusion, hopelessness and depression. One single chance from you can change my life for good. Therefore, I request you to show me a little ray of hope and full bag of kindness and give me one chance where I can access my dream of better knowledge, better degree, better relations with my parents and partner and lifetime of happiness.

14. The applicant said that this information was still correct.

15. The Tribunal also referred to the enclosures to the email, including:

    -A copy of a receipt from Kadina Medical Associates for Ms Niki Patel dated 1 March 2019 for an ultrasound.

    -A copy of a receipt for Ms Patel dated 22 March 2019.

    -A certificate for a “corrective salary decrease” for the applicant’s father.

    -A phone message from what appears to from the South Australian Police dated 23 November 2018 in respect to Ms Patel.

    -Doctor’s notes from Dr Maxwell Larty dated 15 January 2019 and 21 January 2019.

    -A letter from the South Australian Registrar of Births, Deaths and Marriages dated 19 June 2019 stating that the applicant had a registered relationship between himself and Ms Patel.

16. The applicant agreed that he had no other documentary evidence to provide to the Tribunal.

17. Regarding his relationship with Ms Patel, the applicant said he was still in a relationship with Ms Patel.

18. When the Tribunal asked the applicant what the events relating to Ms Patel that occurred in 2019 had to do with him ceasing to be enrolled in 2018, the applicant ultimately admitted that the events relating to Ms Patel that occurred in 2019 had to do with him ceasing to be enrolled in 2018. The applicant admitted that the abortion circumstances of 2019 had no bearing at all on his ceasing to be enrolled in 2018.

19. The applicant then admitted that he had stayed unenrolled from mid-2018 to the time his student visa was cancelled on 20 August 2019.

20. After some discussion with the applicant about what he suggested were the key factors as to why he failed to remain enrolled, he said he felt depressed and he had financial problems. 

21. When asked if he paid his course fees, the applicant indicated that he paid some of the fees but not all of the fees. When asked if he recalled that he would reasonably have given a financial guarantee that he could pay his course fees as well as his living expenses, the applicant indicated that he did recall that he made such a guarantee. When asked why he did not pay all of his course fees, he indicated that his father could not afford to pay to help him. When asked if he agree that it was his responsibility as the visa holder to pay all of his course fees, he said he agreed. Whilst he indicated that he did approach his course provider with his problems, whether personally or by email, he said that he did not remember. When asked if he approached the department to tell them that he was no longer enrolled, he said he did not approach the department. When asked if it was his responsibility as the visa holder to advise the department that he was no longer enrolled, he agreed that it was his responsibility. When asked if it was his responsibility as the visa holder to abide by the conditions of his visa, he agreed that it was his responsibility.

22. When asked about the issue of the domestic violence situation and the report to the South Australian Police dated 23 November 2018, the applicant ultimately admitted that this situation had nothing to do with his failure to remain enrolled in mid-2018. The applicant said that Ms Patel had a domestic violence incident with a man she had been involved with, but that this man (named Mohamed) had gone back to Pakistan.

23. When asked about his claim that depression affected his studies, he admitted that he waited until at least six months after he ceased his enrolment to see a doctor about his depression. The Tribunal spoke with the applicant about the two medical reports from early 2019. The Tribunal put to the applicant that there appeared to be no actual diagnosis from the medical practitioner about the applicant’s claim that he had a mental health condition or was being treated for a mental health condition. In response, the applicant said he was an introverted person and quite shy. He said that he lost a lot of weight and he thought there was an issue about his health and that was why he went to the doctor.

24. The Tribunal spoke to the applicant about his statement about the problems he said he experienced feelings of isolation and hopelessness. The Tribunal acknowledged that it can be difficult for students to adjust to being away from home and life in Australia. When the Tribunal asked the applicant when he first came to Australia, the applicant responded that he came to Australia in July 2015. The Tribunal put to the applicant that he had been in Australia for about three years before he ceased being enrolled. The Tribunal put to the applicant that he probably had sufficient time living away from home to adjust to life in Australia after the lapse of time of three years. In response, the applicant admitted that after three years in Australia he was not missing his family as much and in that respect he was getting better.

25. When asked about his uncle and aunt, he said that his uncle died of cancer at around Christmas time of 2018 and his aunt died in 2019. The Tribunal put to the applicant that these events, the death of his uncle and aunt, happened after the time he ceased to be enrolled in mid-2018 and therefore the death of his uncle and aunt had nothing to do with the applicant ceasing to be enrolled in mid-2018. In response, the applicant agreed that the death of his uncle and aunt had nothing to do with the applicant ceasing to be enrolled in mid-2018.

26. When asked if there were any other issues that the Tribunal had not discussed with the applicant about why he did not remain enrolled that he wanted to discuss with the Tribunal, he indicated that he thought the Tribunal had discussed all of the circumstances as to why he ceased to be enrolled.

27. In respect of the above, the Tribunal makes the following findings.

28. The Tribunal accepts that the key factors as to why the applicant failed to remain enrolled, were because he felt depressed at the time and he had financial problems. 

29. Regarding the applicant’s feeling of being depressed at the time he ceased to be enrolled in mid-2018, the Tribunal gives this low weight for the following reasons. The Tribunal accepts that by the time the applicant had ceased to be enrolled in mid-2018 the applicant had been in Australia for about three years. The Tribunal accepts that, as the applicant admitted, after three years in Australia he was not missing his family as much and in that respect he was getting better. The Tribunal accepts that while the applicant went to see a medical practitioner around six months after he ceased to be enrolled, he does not have a medical diagnosis of a mental health issue and he has not received ongoing medical treatment for a diagnosed mental health issue. Overall, the Tribunal is not satisfied that the applicant’s mental state was an overly significant factor in the applicant’s failure to maintain his enrolment in mid-2018.

1. Regarding the applicant’s claim of having financial problems at the time he ceased to be enrolled in mid-2018, the Tribunal gives this low weight for the following reasons. The Tribunal does have some sympathy for the applicant’s explanation that the reason why he did not pay all of his course fees was because his father could not afford to pay to help him. However, the Tribunal accepts that the applicant would reasonably have given a financial guarantee that he could pay his course fees as well as his living expenses. The Tribunal accepts that it was his responsibility as the visa holder to pay all of his course fees. The Tribunal is not satisfied that the applicant approached his course provider with his problems in mid-2018 because he said he did not remember whether he approached his course provider personally or by email. The Tribunal accepts that the applicant did not approach the department to tell them that he was no longer enrolled. The Tribunal finds that it was the applicant’s responsibility as the visa holder to advise the department that he was no longer enrolled, and it was his responsibility as the visa holder to abide by the conditions of his visa.

2. The Tribunal accepts that the applicant’s partner had an abortion, but that these circumstances of 2019 had no bearing at all on the applicant ceasing to be enrolled in mid-2018. Accordingly, the Tribunal gives no weight to this factor.

3. The Tribunal accepts that the applicant’s partner had a domestic violence situation in late 2018, but that these circumstances had no bearing at all on the applicant ceasing to be enrolled in mid-2018. Accordingly, the Tribunal gives no weight to this factor.

4. The Tribunal accepts that the applicant’s uncle died of cancer at around Christmas time of 2018 and his aunt died in 2019, but that these circumstances had no bearing at all on the applicant ceasing to be enrolled in mid-2018. Accordingly, the Tribunal gives no weight to this factor.

5. In balancing the above circumstances, the Tribunal is not satisfied that the applicant’s circumstances surrounding his failure to remain enrolled in mid-2018 are particularly compelling or exceptional circumstances. Accordingly, the Tribunal places low weight on this information.

   The purpose of the visa holder’s travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

6. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was initially to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

   The extent of compliance with visa conditions

7. The applicant appears to have abided by his other visa conditions. Accordingly, the Tribunal gives some weight in the applicant’s favour in regard to this factor.

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

8. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled.

9. In response, the applicant indicated that he would face hardship because he felt that, despite being in Australia for five years, he did not have any skills to go back to India with. He said he would be disappointed, and his parents would be disappointed because he has already spent a lot of money.

10. The Tribunal accepts that despite being in Australia for five years, the applicant has not acquired the qualifications he would have liked to have acquired The Tribunal also accepts that there may be some disappointment caused to the applicant and his parents if his visa was cancelled and gives this matter some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

11. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140 of the Act

12. The applicant does not have any dependants on his student visa who would be affected if his student visa was cancelled. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

13. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

14. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to India.

15. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

16. The Tribunal places some weight on this information in the applicant’s favour.

    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

17. The Tribunal asked the applicant if he feared anything in returning to India. In response he said he had no fears if he went back to India.

18. Accordingly, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled.

19. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

20. In respect to whether there were any other relevant matters he wished to discuss, that he thought the Tribunal had not already discussed with him. The applicant said that he was concerned about his relationship with partner. The applicant explained that his partner wanted work experience in Australia. The Tribunal has some sympathy for the applicant’s circumstances and give this factor some weight.

    Conclusion

21. In balancing the overall circumstances above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Joseph Lindsay
    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.