Tekula (Migration)

[2020] AATA 1732

Tekula (Migration) [2020] AATA 1732 (4 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sunil Reddy Tekula

CASE NUMBER:  1908104

HOME AFFAIRS REFERENCE(S):          BCC2018/6255620

MEMBER:Wendy Banfield

DATE:4 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 04 May 2020 at 11:26am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – not enrolled in registered course – study difficulty and enrolment in lower-level course in different subject area – mother’s health and applicant’s return to care for her – grandmother’s death – workplace injury and mental health – 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 26 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training 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 complied with the terms of his student visa that required him to maintain enrolment in a registered course of study. 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 32 years old. He first came to Australia in 2013 to undertake a master’s degree. The applicant held a bachelor’s degree obtained in his home country. Since he arrived in Australia the applicant has not completed any courses in the higher education sector. He was studying a diploma course, but his enrolment was cancelled. The Department then cancelled the applicant’s visa due to his failure to maintain enrolment for nearly 12 months.

4. The applicant appeared before the Tribunal on 18 March 2020 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

6. The applicant submitted the following evidence in support of his application for review:

   ·     Applicant’s submission dated 15 April 2019 seeking study rights for the applicant;

   ·     Application for a Bridging visa dated 14 April 2019;

   ·     Statutory declaration of the applicant dated 15 April 2019 attaching academic transcripts;

   ·     Statutory declaration of the applicant dated 7 March 2019:

   ·     Medical certificates for Tekula Vijayalaxmi dated 18 January and 1 February 2016;

   ·     Letters of deferral from Australian Academy of Commerce dated 24 January and 11 February 2017;

   ·     Psychologist’s report dated 11 January 2017;

   ·     Bridging visa grant letter dated 17 April 2019 with no study rights;

   ·     Representative’s submission dated 3 March 2020;

   ·     Letter and medical report from Eastwood Diagnostic Imaging dated 12 June 2018;

   ·     Death Certificate for Tekula Sathamma dated 10 July 2017;

   ·     Affidavits from the applicant’s mother and grandmother dated 17 March 2020;

   ·     Statutory declaration of the applicant dated 17 March 2020;

   ·     WorkCover NSW documents in relation to the applicant’s work injury;

   ·     Medical certificates from West Ryde Medical Centre dated 13 February 2019;

   ·     Medical imaging request dated 6 June 2018;

   ·     Applicant’s travel documentation for return trips to India;

   ·     Confirmation of Enrolment certificates (CoEs) for a Diploma and Advanced Diploma in Leadership and Management; Master of Information Technology (IT);

   ·     Results statement from Federation University dated 22 July 2015;

   ·     Results statement for a Diploma of Leadership and Management;

   ·     Certificate of completion for English for Academic Purposes dated 15 November 2013;

   ·     Academic transcript for a Bachelor of Technology, Electronics and Communication Engineering;

7. The Tribunal also considered the evidence submitted to the Department including the response to the Department’s Notice of Intention to Consider Cancellation dated 21 February 2019.

8. The applicant gave evidence at the Tribunal hearing that he began studying a Masters of IT in Australia, but he failed some of the subjects as the study methods were different to India. He found the subject difficult, so he changed to a Diploma of Leadership and Management. The applicant advised he passed nine subjects out of 12 and has three to complete. His evidence was that he had to return to India due to his mother’s ill-health and this affected his studies. According to the applicant his grandmother died on 30 May 2017 and he was unable to take his exams. He submitted he also hurt his back at work and was required to take bedrest and physiotherapy. The applicant said he was then unable to enrol anywhere else to complete his course. The applicant confirmed he completed three subjects in his master’s degree and most of the Diploma course he was taking. The applicant conceded he had not made progress academically but as well as the issues he faced, he said he had retaken subjects in the master’s degree two or three times.

9. The representative’s submission dated 3 March 2020 sets out the applicant’s circumstances. It is submitted the applicant was unable to continue his master’s course and changed to a diploma. He could not complete the diploma due to a mental health condition; he had to travel to India from Australia due to his mother’s health condition in 2016 and 2017; he was granted deferrals by his college but due to missing classes his enrolment was cancelled;  the applicant applied for study rights but has not been permitted to study due to the terms of his Bridging visa; he wishes to continue his studies and has been assured by his education provider that new CoEs will be issued. It was also submitted the Department was biased in not granting the applicant study rights after his visa was cancelled.

10. 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

11. 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?

12. 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).

13. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course of study from 13 March 2018 to 7 March 2019. The Department issued a Notice of Intention to Consider Cancellation on 21 February 2019. The applicant responded to the NOICC and provided reasons why his visa he should not be cancelled. He did not dispute there were valid grounds to cancel his visa. During the hearing the applicant was asked whether he agreed there were grounds to cancel his visa. He did not agree or disagree but provided an explanation about the cancellation of his CoE and problems he encountered trying to re-enrol. 

14. 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

15. 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

16. The applicant arrived in Australia in 2013 with the intention of studying a master’ degree. He enrolled in the course and passed some subjects, but later discontinued the course and enrolled in a diploma.  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.

17. During the Tribunal hearing the applicant was invited to make submissions regarding his any compelling need to remain in Australia. The applicant submitted he just wants to be successful and complete the diploma course he was previously enrolled in. He claimed he could not focus on his studies prior to his visa being cancelled but now has another college that will enrol him. He referred in his evidence to the Department not giving him study rights when he applied to vary the conditions of his Bridging visa. The Tribunal considered the applicant’s submissions but finds his written and oral evidence does not demonstrate a powerful or convincing reason for needing to stay in Australia. 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

18. 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)

19. During the hearing the applicant was invited to make submission regarding any hardship that may be caused if his visa is cancelled. The applicant said he does not want to let himself down and he needs to complete three subjects of a diploma course. He referred to having a Bachelor of Technology, Electronics and Communication Engineering from his own country and claimed he needs to complete his studies in Australia to help with finding a job or starting a business. It is noted the applicant already held a bachelor’s degree and had travelled to Australia originally to undertake postgraduate studies. It is difficult to see what benefit the applicant will derive from a diploma course, over and above the degree qualification he already has. Nevertheless, the Tribunal accepts there will be a degree of hardship caused by the cancellation of the applicant’s visa and gives some weight in his favour in assessing this criterion.

20. 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

21. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for approximately 12 months. The applicant gave several reasons for this; he experienced mental health issues, his mother in India was unwell, his grandmother passed away and he suffered a workplace back injury. These issues were outlined at the hearing, in the applicant’s statutory declarations and the representative’s submissions. Regarding his mental health, the applicant provided a psychological report dated 11 January 2017. The applicant was diagnosed with “extremely severe” depression, anxiety and stress. It is reported that the applicant has a history of depression and anxiety including in 2011 to 2013, prior to travelling to Australia. The applicant’s symptoms were said to have continued in Australia, they were exacerbated when he ceased studying a Master of IT and persisted because of a lack of social support and concerns about his mother’s health.  The applicant reported an improvement in his mental health from December 2016. In his response to the Department the applicant’s representative stated the applicant is taking medication.

22. The applicant provided evidence that his grandmother had passed away while he was in Australia and his mother was unwell in India necessitating his return on two occasions to take care of her. He applied for and was granted deferrals from his studies for this purpose. The applicant’s evidence is that although he was granted leave from his studies, he still missed classes and his enrolment was cancelled as a result. The applicant submitted medical evidence and Work Cover NSW documentation regarding a workplace injury he suffered in May 2018. The applicant explained that he had to have rest and treatment as a result of the injury.

23. The Tribunal considered the applicant’s evidence about difficulties he faced as a student in Australia but is not satisfied he provided sufficient explanation for his failure to maintain enrolment for almost a year. The evidence indicates, and the Tribunal accepts, the applicant had personal issues to deal with regarding his own health and that of his family members. The Tribunal notes the applicant continued studying after visiting a counsellor about his mental health in January 2017 and was able to continue during that year. Even though the applicant’s enrolment ceased in March 2018 and he was not enrolled to study thereafter prior to his visa being cancelled, the evidence indicates he nevertheless continued working. In May 2018 he experienced a workplace injury but according to the Work Cover documents submitted by the applicant he was assessed as able a undertake a restricted range of tasks in June 2018 under a staged return to work plan. The applicant did not explain why he was able to work but not study during the period when he was not enrolled. The Tribunal does not accept he was unable to re-enrol anywhere because he was able to do so after receiving the Department’s NOICC letter. The Tribunal is not satisfied the issues the applicant faced are sufficient reason for him to remain in Australia in breach of visa conditions for an extended period.

24. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or defer his studies during the nearly 12-month period when he was not enrolled, in breach of visa conditions. If the applicant’s difficulties were such that he was unable to study, he should have put his education on hold and departed Australia until he was in a position to continue. 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

25. 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

26. 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

27. 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

28. 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

29. The Subclass 572 Student Visa is not a permanent visa.

    ·     any other relevant matters

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

    Conclusion

31. 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 explain his gap in enrolment or are sufficient reason for the visa not to be cancelled.

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

    DECISION

33. 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.