SAMA (Migration)

[2019] AATA 3615

SAMA (Migration) [2019] AATA 3615 (27 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PURUSHOTHAM SAMA

CASE NUMBER:  1702936

HOME AFFAIRS REFERENCE(S):           BCC2016/4297116

MEMBER:Wendy Banfield

DATE:27 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 May 2019 at 12:17pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant ceased studies – change to English courses – 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 13 February 2017 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not maintained enrolment in a registered course of study as required by the conditions of his Student Visa. 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 was granted a Student Visa on 13 June 2015 and arrived in Australia to study a Master of Technology program. The applicant had completed a Bachelor degree in his home country and chose to pursue higher education in Australia. The applicant completed part of a post-graduate course in Australia before ceasing his studies in April 2016.

4. Prior to the hearing the applicant submitted an offer letter from Group Colleges Australia for a Master of Business Administration commencing on 13 May 2019 and ending on 23 April 2021.

5. The applicant appeared before the Tribunal on 21 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.

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

   The hearing

7. The applicant confirmed he came to Australia in July 2015 and was enrolled in a Master of IT. He advised he had decided to study in Australia because an international degree would be valuable in his home country. According to the applicant he completed the first semester of his course however in the middle of the first year he encountered difficulties. The applicant said he had problems understanding the course due to the Australian accent and a lack of English ability. At the same time, his parents were going through financial problems.

8. The applicant said he took steps to try and improve his English skills but in regards to his family’s financial issues, in 2016 they lost everything and were impacted economically. The applicant confirmed this was the reason he was unable to re-enrol in his course in 2016. He said he experienced his own financial difficulties as he was unable to pay the semester fees. The applicant claimed that at the time he lacked guidance, was naive and did not understand the legal implications. He advised that he was also suffering mentally.

9. The applicant claimed his education provider cancelled his enrolment and he was unable to enrol again with the same college. In addition the applicant claimed he could not obtain copies of his transcript which prevented him from enrolling elsewhere. He said he was seeking to enrol in a different institution because his college was not supportive. The applicant said that in 2017 his family’s financial situation had improved, however by that time, his visa had been cancelled.

10. The Tribunal asked the applicant how he was able to obtain a recent letter of offer from Group Colleges Australia when he had said he was previously unable to enrol with another education provider. The applicant stated it was because he had previously wanted to re-enrol in IT but he was now planning to undertake an MBA. The applicant said that during the period when he was not studying he had struggled to pay for accommodation and food. He said he had worked for a short time and been supported by friends. After his visa was cancelled, the applicant said he had been engaging in self-study to prepare himself to resume his education. According to the applicant he plans to look for a management position in IT on his return to India.

11. The applicant conceded he had not been enrolled to study from April 2016 to January 2017 and that there had been grounds for cancelling his Student Visa. The applicant was asked to comment on whether he had a compelling need to stay in Australia. The applicant said he was seeking leniency in order to finish his MBA which would allow him to apply for a management position in IT. He said it would also allow him to fulfil his family responsibilities. According to the applicant he did not enquire whether he was able to study after his visa was cancelled due to a lack of knowledge. He advised that he believed he had to wait until his application for review had been heard.

12. Regarding the degree of hardship that may result from the visa being cancelled, the applicant said he had made plans to finish his course and would feel like he had lost hope if his visa is cancelled. He advised there were no consequential cancellations in his case and he understood the mandatory legal consequences. In this regard the applicant stated he had been waiting a long time for a review and that cancellation of his visa would affect the mental health of his parents. The Tribunal asked the applicant why he did not depart Australia if he was unable to pay for his studies. He said that at the time he was struggling financially and could not afford a flight nor did he want to add to his parents difficulties in India.

13. The applicant’s representative advised the Tribunal that the applicant had been preparing to leave the country when he received notification of the hearing. He said the applicant could provide documents relating to his family’s financial situation if required. Since it appeared the documents in question related to later in 2017 rather than the period when the applicant was not enrolled to study, the Tribunal advised that such evidence was not required.

14. 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

15. 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?

16. 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).

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

18. The applicant gave evidence that he had been studying a post-graduate course in Australia but due to financial difficulties, he had not been able to continue. He acknowledged that while holding a Student Visa, he had not been enrolled to study for the relevant period, April 2016 to January 2017. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

19. 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 Procedures Advice Manual (PAM3) ‘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

20. 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.

21. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant said he wanted to finish his MBA because he is planning to apply for a management position in IT. He said completing the course would also allow him to fulfil his family responsibilities. The Tribunal notes the applicant gave evidence that his family circumstances improved in 2017 but his visa had been cancelled by that time. He did not investigate whether he could recommence his studies while waiting for his application for review to be heard despite stressing the importance of completing his education. In this regard, the Tribunal notes the applicant only obtained a letter of offer immediately prior to the Tribunal hearing.

22. As such, the applicant’s behaviour and claims do not demonstrate 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

23. 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)

24. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled.

25. The applicant claimed he would suffer hardship if his visa is cancelled because he made plans to finish his course and would feel like he had lost hope. He later claimed his parents’ mental health would suffer if he had to return to India without completing his studies. The Tribunal does not consider the degree of hardship would be such in the circumstances that the visa should not be cancelled. In addition, the Tribunal notes the applicant has not provided evidence that he has accepted the letter of offer from Group Colleges Australia or paid enrolment fees that would result in any financial hardship to him.

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 continue enrolment in a course of study for a period of at least eight months. The applicant advised he experienced difficulties with the language but primarily he faced financial problems and was unable to pay for his course.

28. The Tribunal accepted the applicant’s claims that his parents may have faced financial issues in India which in turn affected his ability to pay for his studies. He claimed he did not take any action to address his circumstances due to a lack of knowledge and he did not leave Australia because he could not afford to travel. He also stated he did not want to add to his family difficulties by returning to India at the time. The Tribunal does not accept these are valid reasons for failing to maintain enrolment over a significant period of time. The applicant would have been well aware that he was non-compliant with the terms of his visa by not being enrolled or attending a course of study.

29. The Tribunal is not satisfied the applicant’s failure to study or seek a deferment of his studies during the period when he was not enrolled, in breach of visa conditions were due to circumstances beyond his control. It was open to him to defer his studies until he was in a position to pay for his course and comply with visa conditions. The applicant was vague regarding his activities during the relevant period of non-enrolment except to say he had trouble paying for his accommodation and food and spent his time in “self-study”. The Tribunal is not satisfied the applicant’s claims of a lack of knowledge of the consequences of not studying justify a significant breach of visa conditions. 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

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

32. 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

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

34. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

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

    Conclusion

36. 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 heavily 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 are sufficient reason for the visa not to be cancelled.

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

    DECISION

38. 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 (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.