SATHINENI (Migration)

[2019] AATA 6830

SATHINENI (Migration) [2019] AATA 6830 (11 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SANTOSH REDDY SATHINENI

CASE NUMBER:  1900623

DIBP REFERENCE(S):  BCC2018/5016153

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         11 November 2019 at 2:54 pm (VIC time)

DATE OF WRITTEN RECORD:                5 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 05 February 2020 at 11:07am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – family bereavements – relationship breakdown – limited academic progress – applicant changed to vocational course – impact upon employment prospects – decision under review affirmed          

LEGISLATION

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 January 2019 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 11 November 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision dated 2 January 2019, made by a delegate of the Minister for Home Affairs to cancel the applicant’s student visa (Subclass 500), under section 116(1)(b) of the Migration Act 1958. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study.

4. The issue in the present case is whether that ground for cancellation is made out and if so, whether the visa should be cancelled.  The applicant appeared before the tribunal on 11 November 2019 to give evidence and present arguments.

5. For the following reasons, the tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

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. If the applicant has breached that condition, under section 116(1) of the Act, the visa may be cancelled. The first question for determination in this case is whether or not the applicant complied with condition 8202.

7. As it applies in this case, that condition requires that the applicant be enrolled in a registered course of full-time study or training.  In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.  An examination of the delegate’s decision record notes the information for the Department indicated the applicant did not maintain enrolment in a registered course of study, from 15 December 2017 until 26 November 2018.  A notice of intention to consider cancellation was issued to the applicant on 23 November 2018.

8. In response to the notice of intention to consider cancellation, by way of email dated 29 November 2018, the applicant did not dispute there was a ground for cancellation.  He sought to explain the circumstances that led to the ground for cancellation.  In the applicant’s oral evidence at hearing, the applicant confirmed that he was not enrolled in a registered course at the relevant time, being between 15 December 2017 and 26 November 2018 and he gave detailed evidence consistent with his response to the notice of intention to consider cancellation as to the reasons for his non-enrolment. 

9. The applicant said that his failure to maintain enrolment was unintentional, he has maintained health insurance, he is a genuine student who intends to genuinely return home to India after his studies, his non-enrolment was caused by the emotional trauma of losing his grandparents in short succession in September 2017 and March 2018 respectively and further, he suffered some hardship and trauma on account of the break-up of a long-term relationship in or around the same time.

10. On the evidence before the tribunal, the tribunal is satisfied that the applicant was not enrolled in a registered course between 15 December 2017 and 26 November 2018 and accordingly, the tribunal finds that the applicant has not complied with condition 8202(2).  Having found that the applicant has not complied with a condition, the tribunal must now 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 the discretion. 

11. 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. 

12. As to the visa holder’s travel and stay in Australia, the applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 500) visa on 2 November 2016, for the purposes of undertaking an approved higher education level course of study at Charles Sturt University, in a Master in Information and Technology.  The applicant failed some subjects in the commencement of that degree and shortly thereafter, enrolled in a Master of Business and Project Management at Asia Pacific International College. 

13. The applicant gave evidence at hearing as to his study history.  The applicant informed the tribunal that he finished high school in India and a Bachelor Electronic Communications Engineering.  The applicant further gave evidence at hearing that he struggled initially with his degree in a Master of Information Technology because he was new to Australia, it was the first time being away from home and he sorely missed his parents and grandparents and experienced some difficulty in this regard.

14. On the evidence before the tribunal, the tribunal finds that the applicant’s original intention in coming to Australia was for the primary purpose to undertake his studies.  The tribunal further notes that the applicant successfully completed an English course between the period of 26 November 2018 and 13 January 2019.  The applicant is presently enrolled in a Diploma of Leadership and Management, which he is scheduled to complete in July 2020. 

15. Therefore, on the evidence before the tribunal, the tribunal is satisfied that the applicant has demonstrated his primary purpose for being in Australia was for the purpose of study.  However, the tribunal notes that that purpose ended when enrolment was cancelled for approximately 12 months, during 15 December 2017 and 26 November 2018 and the tribunal notes that the enrolment in the English course occurred shortly after receipt of the notice of intention to consider cancellation. 

16. The tribunal gives these matters some minor weight towards the visa not being cancelled.

17. As to the extent of compliance with the visa conditions, the tribunal finds that there is a considerable time lapse between the period of non-enrolment and receipt of the notice of intention to consider cancellation, that is, approximately 12 months.  The tribunal has some concern that the enrolment in the English course occurred some three days after receipt of the notice of intention to consider cancellation on 23 November 2018.

18. The tribunal further notes that the circumstances which led to the breach of the visa, although they have afforded some hardship to the applicant namely, being the death of close family members, the applicant gave evidence that he did not take steps to appeal the cancellation of enrolment with the university or inform the Department about these matters.  It was expressly put to the applicant by the tribunal as to why he did not take steps to appeal the cancellation or take steps with his university to defer his course in the circumstances and the applicant gave honest and candid evidence that he was just suffering from immense difficulty at the time and he did not realise that anything would happen as a result of not taking these steps or dealing with his family issues and that he was depressed at the time.

19. The tribunal has some sympathy for the circumstances which led to the breach of the visa conditions however, the tribunal finds that it was reasonably within the control of the applicant to take steps to defer his studies or appeal his cancellation on compelling or compassionate grounds in the circumstances.  Yet, those steps were not taken, and the tribunal places some weight on that conduct and in the circumstances, the tribunal places minor weight on the visa not being cancelled in the circumstances.

20. As to the degree of hardship that might be caused if the visa remains cancelled, the applicant gave detailed evidence that he will suffer from some shock and depression if the visa remains cancelled, that he informed the immigration Department of his reasons, yet to no avail and that the hardship he will suffer will be that he will fail to complete what was his grandparents’ dream for him to complete, that is, a master’s degree in Australia.  The applicant also gave reasons in his response to the notice of intention to consider cancellation, that the cancellation will have a detrimental impact upon his career prospects in India and that it would be difficult to apply for multinational companies in India if he has not graduated or received his degree.

21. The tribunal has some sympathy for the matters described by the applicant and the tribunal accepts that the applicant has suffered some personal detriment.  However, in circumstances where there are no other family members being impacted in Australia, as confirmed by the applicant in his evidence, the tribunal gives this hardship minimal weight towards the visa not being cancelled.

22. The tribunal now turns to the circumstances in which the grounds for cancellation arose.  The applicant gave detailed, honest and candid evidence about the passing of his grandfather in September 2017 and the passing of his grandmother in March 2018, in his home country in India and the detrimental impact that had upon his psychological wellbeing and his capacity to study.  The applicant also gave candid and honest evidence about the break-up of a significant relationship in or around that time, which also caused him some distress and distraction from his studies. 

23. The applicant has provided written confirmation of the passing of both his grandparents in India and the applicant has also provided a psychologist’s letter from a Mr Greg Philpot, Medicare number 2904648A, which is dated 28 November 2018.  That letter from the consultant psychologist sets out the background to which I have already referred, that is namely, the passing of the applicant’s grandparents and the break-up of a substantial relationship which caused the applicant to suffer significant trauma at the time and that that trauma had an impact on his emotional wellbeing and capacity to concentrate, remember and be effective when studying. 

24. The tribunal accepts that these matters have certainly impacted, on an emotional level, the applicant, in the circumstances that he has described.  However, in the evidence at hearing, the applicant indeed confirmed that he did not take steps to seek a deferral of his studies on compassionate grounds and he did not take steps to appeal the cancellation for the same reasons.  The tribunal is troubled by the failure to take those steps, on the basis that it was reasonably within the control of the applicant to do so.

25. On the basis of that evidence and on the basis that the psychological letter was obtained after the notice of intention to consider cancellation, the tribunal finds that the circumstances surrounding the cancellation were reasonably within the control of the applicant, because the applicant could have taken steps to defer his studies and/or appeal his cancellation of his enrolment on compelling or compassionate grounds and he has not taken steps to do that.  The tribunal therefore gives this significant weight towards the visa being cancelled.

26. The applicant gave evidence at hearing of no previous issues with the Department of Home Affairs.  Indeed, the evidence before the tribunal suggests that the applicant has acted in good faith towards the Department.  The tribunal notes that the applicant has responded quickly and concisely to the notice of intention to consider cancellation and the evidence at hearing is consistent with the matters set out in the response to that notice and the tribunal gives this good conduct some weight in favour of the visa not being cancelled.

27. The applicant gave evidence that there are no persons in Australia whose visas would be consequently cancelled under section 140 of the Act as a result of his visa cancellation.  The tribunal therefore gives this factor no weight in favour of the visa being cancelled.

28. As to whether there are any mandatory or severe consequences as a result of the cancellation, the tribunal notes that if the visa were to be cancelled or remain cancelled, the applicant would be excluded from making certain applications for certain types of visas.  It may be the case that he would be liable to indefinite detention or possible removal from the country if he were not to depart the country in good time.  However, these are mandatory consequences of the legislation and given the circumstances set out above, in respect of which the grounds for cancellation arose, I do not consider this to be manifestly unfair and I give this only a little weight in favour of the visa not being cancelled.

29. 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, the tribunal finds that this is not relevant to this case. 

30. As to whether there are any other relevant matters, the applicant was invited to put any further matters to the tribunal.  The applicant informed the tribunal that he wants to complete his master’s degree.  It was put to the applicant that, notwithstanding he expressed a desire to compete his master’s degree, he is currently enrolled in a diploma level course of leadership and management.  The applicant informed the tribunal that after the completion of that course, he wishes to complete his master’s degree and the tribunal has no reason to doubt the genuine intention of the applicant in this regard.

31. The applicant gave further evidence that there will be a detrimental impact upon his employment prospects and in the circumstances, the tribunal has considered these matters and gives a little weight towards the visa not being cancelled.

32. It is clear however the breach does not reveal any bad faith on the part of the applicant.  However, it was occasioned by matters reasonably within his control, for the purposes I have set out above.  It is also clear that the considerations I have arrived at, on examining all of the evidence before me, lead towards the visa being cancelled and I so find. 

33. Given the circumstances as a whole, the tribunal concludes that the visa ought to remain cancelled. 

    DECISION

34. The Tribunal affirms the decision of the delegate to cancel the applicant’s visa. 

    Vanessa Plain
    Member