Tushar Kumar (Migration)

[2019] AATA 2442

Tushar Kumar (Migration) [2019] AATA 2442 (3 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tushar Kumar

CASE NUMBER:  1726679

HOME AFFAIRS REFERENCE(S):           BCC2017/2877677

MEMBER:Joseph Lindsay

DATE:3 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 July 2019 at 1:42pm

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 – non-payment of fees – lack of financial capacity – claims of mental health issues – lack of diagnosis – 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 19 October 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 applicant attended the hearing before the Tribunal on 9 April 2019. The applicant was not represented by a migration agent at the hearing although he had appointed a migration agent to assist him. The applicant’s wife, Maria, attended the hearing and indicated that she was not a witness and she did not want to give evidence. However, later in the hearing Maria indicated she did want to give evidence. Accordingly, Maria was subsequently sworn in and gave evidence at the hearing.

3. The applicant spoke to the Tribunal in English and did not require the use of an interpreter.

4. 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

5. 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?

6. 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).

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

8. The Tribunal asked the applicant about his enrolment history in Australia. In response the applicant indicated that he came to Australia in 2009 and that he had been in Australia for 10 years on student visas the entire time. He indicated he finished year 12 while he lived with his sister and then he got admission to RMIT University in an Associate Degree in Information Technology in 2011. He indicated he finished three semesters of that degree but he never finished his course.

9. The applicant indicated he has actually never finished any of the courses that he enrolled in.

10. He indicated that he had previously had an enrolment in a Bachelor’s degree in Information Technology and he could not pay the fees for that course so his course provider cancelled his enrolment.

11. He indicated he tried to get admission in a Diploma in Information Technology but then his visa got cancelled. He indicated he also obtained an enrolment in an Advanced Diploma.

12. The Tribunal put to the applicant that what he had said in the hearing about his course enrolment history was broadly consistent with his Provider Registration and International Student Management System (PRISMS) record.

13. In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department dated 19 October 2017 indicating that he had not been enrolled in a registered course of study between 24 February 2017 and 14 September 2017. In his response to the Tribunal, the applicant agreed that he had not been enrolled in a registered course of study between 24 February 2017 and 14 September 2017.

14. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study between 24 February 2017 and 14 September 2017. 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

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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The circumstances in which the ground for cancellation arose

16. The Tribunal asked the applicant what was happening to him between 24 February 2017 and 14 September 2017 that led to him not being enrolled anymore. In response he indicated that at the time he didn’t have any money and didn’t have a job so he couldn’t pay the fees and that was why he did not remain enrolled. He indicated he did not talk to his parents about his situation.

17. The applicant indicated that there was another instance prior to 2017 where his course provider cancelled his enrolment in 2016 (in the Bachelor’s degree) because he could not pay his course fees.

18. The Tribunal put to the applicant that he had been on student visas for many years, to which he agreed. The Tribunal put to the applicant that the Tribunal would reasonably expect the applicant would be well aware of the need to remain enrolled and comply with condition 8202 of his visa and that as part of having the student visa he would have been required to provide a financial guarantee, to which he agreed. The Tribunal put to the applicant that the Tribunal would reasonably expect the applicant could pay his course fees. In response the applicant said he could not really say anything about that. He said “I messed it up.”

19. The Tribunal asked the applicant if he recalled his response to the Notice of Intention to Consider Cancellation (NOICC) and he said “yes.”

20. The Tribunal noted that in his response to the Department the applicant had provided a lot of information. In response the applicant said he was depressed and didn’t know what to do. The applicant indicated that he was crying and upset because he wanted to complete at least a diploma but that it wasn’t happening. He indicated that he got depressed because he couldn’t pay the fees and that he ended up giving money to his friend who didn’t pay him back and then he couldn’t pay anything. The applicant admitted that these instances occurred at the latter end of a very long period of time in which he had held student visas. He admitted that he had been enrolled in an Associate Degree in Information Technology from 2011 to 2016 over a series of visas he had been given. In response he said everyone tried to help him and the government tried to help him but he was going down at that time and doing all the things that he should not have been doing. The Tribunal asked what sort of things he was referring to and he said “like getting a girlfriend” who left him and that he couldn’t concentrate on his studies.

21. The applicant then indicated he enrolled in the Bachelor’s degree but couldn’t pay his fees, and he indicated he couldn’t pay his fees because he loaned a friend money. He said in Australia he was just learning about life and not really learning about his studies. He said it’s been a long time learning “like 10 years.” The applicant indicated that the main reason he came to Australia was to do his studies but he didn’t do that.

22. The Tribunal referred to an email dated 11 October 2017 that the applicant had provided to the Tribunal from Hargunjeet Kaur who emailed a family counsellor report from Jaishree Bedi. The applicant said that Jaishree Bedi was his friend’s mother in India. He indicated he spoke to Jaishree Bedi over the phone because counsellors are too expensive. He said he told Jaishree Bedi that his visa would be cancelled so he asked her to write a letter for him.

23. The Tribunal asked the applicant why he was talking to a counsellor. In response he said that Jaishree Bedi was his friend’s mother that he was talking to over the phone and not paying her.

24. The Tribunal put to the applicant that the report from Jaishree Bedi lacked detail and was very general, and that there were no clear identifiable points she was trying to make apart from indicating the applicant was subject to some sort of “mental tension.” In response he said the “mental tension” arose out of his concern that he paid fees for a course that ended up being cancelled and he could not get his money back. He indicated he only paid a portion of the course fees ($4000 instead of the full $8000). He said he couldn’t study also because he just wanted everything to be normal. The applicant indicated that at the time he experienced suicidal ideation because he couldn’t talk to his parents and he couldn’t talk to anyone and then he was sitting down and did not know what to do. The applicant indicated he did not harm himself or attempt to harm himself.

25. The Tribunal put to the applicant that it had no way of testing if Jaishree Bedi was who she said she was, and that Jaishree Bedi was not an Australian registered health practitioner and so the Tribunal may put low weight on the report. In response the applicant said “yes that’s okay.”

26. The Tribunal referred to the report from “The Talk Shop” dated 19 September 2017 signed by Roshini Varghese that stated:

    This is to confirm that I have seen Tushar Kumar for a counselling session on September 19, 2017.

    During this session, Tushar reported the following:

    • Tushar reported that he is an international student from India. In 2013, he was studying an IT degree. Around this time he reported that he experienced a break-up and experienced depression and mental health deterioration as a result. He also resorted to drugs at this time in his life. Tushar sought the support of a counsellor and gradually began working through his emotional difficulties.

    • In 2016, Tushar reported that his parents (who live in India) sent him money to pay for his next semester of study. Tushar reported that around this time, a friend approached him and requested to borrow money. Tushar reported that he loaned the friend the money, expecting to be paid back prior to his fees being due.

    • At the time the fees were due to be paid, Tushar reported that his friend was not able to pay him back. He was not able to continue his course as a result. Tushar then successfully enrolled in a Diploma of IT at a different institute (Baxter). He decided to defer starting this course for six months, in order to focus on his mental health and get emotionally healthy prior to beginning the course.

    • In mid-2017, when Tushar was about to re-enrol, he reported he found out that the rules had changed, and that he was now in breach of his Visa conditions, since he had taken six months away from study.

27. The applicant told the Tribunal that he used marijuana but no other illegal drugs or prescription medication. He indicated that the counsellor referred to was Jaishree Bedi but that he did not speak to Jaishree Bedi in 2013, only in 2016. In respect to the money he said he loaned his friend, he said he loaned $4000 to his male friend (Aditya) but he has never paid him back and he does not know where he is because they never talked again. In respect to the statement “he decided to defer starting this course for six months, in order to focus on his mental health and get emotionally healthy prior to beginning the course” he did not wish to say anything further.

28. The Tribunal put to the applicant that it may put low weight on the report by Roshini Varghese dated 19 September 2017 because a) Roshini Varghese had only seen the applicant once on 19 September 2017 and b) Roshini Varghese had made no assessment of the applicant’s mental health condition other than repeating what the applicant had told to Roshini Varghese during the session on 19 September 2017. In response he said at the time he did not know what to do and wanted to talk to someone and “maybe get a letter or something.”

29. The Tribunal then referred to the letter from Beth Angus, psychologist, from RMIT University dated 26 August 2015.

    RE: Mr Tushar Kumar (s3326592}- Leave of Absence Semester 2, 2015

    I am writing at Tushar's request, to provide information regarding his attendance at the RMIT Counselling Service, as it relates to his request for a leave of absence. He attended counselling on the 30th July and the 25th August 2015 and was seen by me.

    During these sessions he described numerous psychosocial stressors and problematic substance use that in my opinion are having a severe impact on his ability to study. Tushar is making some effort to resolve these issues, such as moving to a more stable and supportive living environment. However, given the semester is well underway, he may benefit from a leave of absence to further consolidate these gains and develop better ways to manage his stress.

30. The Tribunal asked the applicant why he provided a letter from Beth Angus from 2015 and in response he said that was when he was trying to finish his associate degree. He indicated that at that time RMIT were trying to cancel his course enrolment because he could not finish his four remaining subjects because he was failing again and again. He indicated that at that time he did not have a place to stay and he was moving around and he also did not have a job. The Tribunal put to the applicant that Ms Angus had referred to his substance use and described it as “problematic” and he responded “marijuana”.

31. The Tribunal put to the applicant that his choice of using marijuana would likely not assist him in his studies to which he agreed. The Tribunal asked the applicant if he was still using marijuana and in response he said “no”. The applicant indicated that the last time he used marijuana was probably two years ago when his visa got cancelled.

32. The Tribunal asked the applicant what were the “psychosocial stressors” and he responded that he just couldn’t do anything. The Tribunal asked the applicant if he had been able to identify what had been causing the stress apart from his substance use, and he said he couldn’t focus properly on anything. The Tribunal asked the applicant if he thought there was a reason behind why he couldn’t focus properly on anything and he said he just needed to sit down and focus on one thing all the time like studies. He indicated he should have just focused on his studies and worked a little bit. He indicated he moved out and thought he could do it by himself but he couldn’t. He indicated that everything was new to him and he was doing “the substance thing” and he should not have done all that.

33. The Tribunal asked the applicant that, apart from not using any more illicit substances, had he done anything else to rectify his situation. The Tribunal asked the applicant how a similar situation would not happen in the future. In response the applicant said he is more serious now and that he is not reactive anymore and that he thinks about it before he does something now. He said he was just focusing on the things that are important in life, and that before he was new to everything so he was trying everything and doing everything and he didn’t know where to stop. He said he thought he got depression from “doing too much” and he blamed himself for everything thinking he could have done this instead of that. He indicated he now has the understanding to do the right thing so he doesn’t have to face the same consequences.

34. The Tribunal asked the applicant if he had any documentation to indicate that he had been diagnosed with depression or any other mental health condition and in response he indicated he had no such documentation and hadn’t had any such diagnosis.

35. The applicant provided the Tribunal a copy of a report from Stefan Urosevic, clinical psychologist, dated 22 September 2018 that stated:

    To whom it may concern,

    This letter is concerning Mr Tushar Kumar born on 15-05-1992. Mr Kumar presented to The Talk Shop with complaints of anxiety and depression. He reported that he was currently appealing the Immigration Department's recent decision to revoke his visa. This process appeared to be a source of considerable stress for Mr Kumar who feels settled in Australia. His presentation in session was consistent with symptoms of anxiety and depression.

    This letter was produced at the request of Mr Kumar.

36. The applicant indicated to the Tribunal that he went to see Stefan Urosevic because “it was kind of about Visa to” and there was too much stuff because he was trying to work on everything and he was driving a scooter and he had an accident every two months and nothing was really working out. The Tribunal put to the applicant that in his report Stefan Urosevic did not refer to any of the information the applicant had just said to the Tribunal. In response the applicant agreed. The Tribunal put to the applicant that what Stefan Urosevic had said was barely five lines from a one-off visit with the applicant who had told Stefan Urosevic that he was stressed, not because of anything else, but because of the “Immigration Department’s recent decision to revoke his visa.”

37. The Tribunal put to the applicant that the sentence “his presentation in session was consistent with symptoms of anxiety and depression” was not a diagnosis. The Tribunal put to the applicant that the report from Stefan Urosevic was not a report detailing a course of treatment and it appears he did not have more than one appointment with this psychologist. The Tribunal put to the applicant that there was no indication in the report of any confirmed diagnosis or treatment. The Tribunal put to the applicant that the Tribunal may put low weight on the report in respect to any assertion that the applicant had depression or anxiety.

38. The Tribunal referred to another letter from Beth Angus, psychologist, from RMIT University dated 10 February 2015.

    RE: Mr Tushar Kumar (s3326592) - Application for remission (removal} of debt in special circumstances

    I am writing at Tushar's request, to provide further information regarding his attendance at the RMIT Counselling Service in October 2014 as it relates to his application for remission of debt. Tushar attended 2_sessions, and disclosed a number of difficult personal issues that had been affecting him for some time and impacting his mental health and ability to study.

    It is my opinion that Tushar was suffering from a range of depressive symptoms since April 2013. He reported low mood, anhedonia, reduced motivation, hopelessness, worthlessness, withdrawal and excessive guilt and worry. These symptoms were affecting him to varying degrees since their onset, and worsened in July 2014. It is my opinion these symptoms affected Tushar's ability to attend to University processes in a timely manner or seek help.

    I plan to continue to provide counselling support to Tushar this year. Please feel free to contact me if you require any additional information.

39. The applicant responded that at that time he had experienced a break-up with his girlfriend. The Tribunal put to the applicant that the time period he appeared to be going through these difficulties was 2013 and 2014, to which he agreed.

1. The Tribunal put to the applicant that the letters from Beth Angus from 2015 did not assist the Tribunal in relation to why he did not remain enrolled for the six-month period in 2017 – the period of the breach. In response applicant indicated that his difficulties continued and did not stop – and then his visa got cancelled.

2. The Tribunal referred to the document dated 21 September 2017 from the applicant’s parents – Mr Vinod Kumar and Mrs Sudesh Kumari that stated:

   I Mr. Vinod Kumar and Mrs Sudesh Kumari write this letter on the behalf of our son Mr Tushar Kumar. Tushar has been going through hard time for the past two years and has been suffering from stress and depression due to some unfortunate events in his life.

   Tushar has been trying to finish his course for quite some time now but he has not able to concentrate on studies as a result of mental instability due to events that had been happening in his life.

   He had not been sharing his situation much with us as he was under the impression that we will be disappointed in him as he has not been able to finish his degree in time. All this stress got to him and this lead him feeling suicidal which is why our daughter sponsored us to come visit him in Australia to assure him security and support him emotionally as well so that he can start to focus on his life and career.

   We have been trying our best to help him to sail through this rough time, to help him make better decisions in future for which he had been attending regular counselling session as well. We stayed In Australia for eight months and helped him recover from his situation so that he can apply for the university again and get back on the right track.

   However, Tushar informed us about cancellation notice for his visa which has worsen his condition and adversely impacted his mental and physical health. We understand people deviate from their goals and make mistakes and we have also not been very understanding which contributed towards his situation.

   Now that he has realised his mistake and priorities, we request for a chance on his behalf to let him stay and finish his degree so that can have a bright future and overcome his medical condition.

3. The Tribunal put to the applicant that the Tribunal did not have any documentation in respect of any diagnosed mental health condition in respect to the applicant. In response the applicant agreed and indicated that this was because he did not go to the “doctor.”

4. The Tribunal put to the applicant that  it had been a long time since he had seen the doctor – years. In response he said “yeah.” The Tribunal put to the applicant that he had been to see a psychologist but that the Tribunal had concerns about those reports and the weight the Tribunal may put on those reports and that it had discussed these concerns with the applicant.

5. The Tribunal referred to another letter from Beth Angus, psychologist, from RMIT University dated 30 July 2015:

   RE: Mr Tushar Kumar (s3326592} - show cause submission

   I am writing at Tushar's request, to provide information regarding his attendance at the RMIT Counselling Service, as it relates to his show cause submission. He attended 2 appointments in October 2014, 1 appointment in Feb 2015, and most recently attended on the 30th July 2015 and was seen by me.

   During this session he described numerous psychosocial stressors and said they had a severe impact on his ability to study in semester 1, 2015 - unstable accommodation, financial stress, relationship difficulties and transport problems. He reported that these stressors led to depression and problematic substance use.

   Tushar reported that most of these stressors have now resolved and he is in a better position to study in semester 2, 2015. I have strongly encouraged him to attend counselling to assist with managing stress, improving mood and reducing substance use.

6. The applicant commented that at that time it was a bad time for him.

7. The Tribunal referred to the applicant’s own response to the NOICC dated 21 September 2017:

   1. I am writing regarding the above matter and wish to make submission outlining my current situation. In this letter I am demonstrating the circumstance in which the ground for cancellation arose.

   2. I came to Australia on student visa in 2009 and studied at Taylor's college for my year 12. After that I got admission in Associated Degree in IT from RMIT. I had completed 12 subjects of the course and was not able to complete the remaining four. Then I applied for Bachelor's Degree in Information technology and System from VIT institute in 2016. But the COE was cancelled again because I was not able to pay the fee. After that I went for Diploma in Information Technology with leading Degree from Sheila Baxter Training Centre. But my COE has been cancelled in Feb 2017 because I have not paid the fee for the semester.

   3. There are some circumstance due to which I was not able to pay my fee. One is that I was suffering from severe depression and other one is that my parents had actually sent me the money from India to pay the fee but one of my friends approached me at that time to borrow some money. I lend him money as he promised to pay back around the time when I will have to pay tuition fee of my course. But unfortunately he was not able at that time to give my money back. As a result I was not able to pay my course fee at Baxter.

   4. Also the other reason for not getting enrolled in a registered course was that I was under depression for which I am even getting treatment from my doctor (Jaishree Bedi) in India. I am continuously getting counselling over phone with my counsellor. The counsellor is currently on holiday and is in Dubai, so she will be able to provide a written statement about the condition of mine after returning back to India after 29^th September 2017. I can provide the required certificate for counselling from her only after 29th September 2017. In actual, I am suffering from depression from last 4 years. As I have a history of going to a counsellor for my treatment during my studies at RMIT, I was seeing the psychologist, Beth Angus at RMIT counselling services. I have attached the letters which I got from him at that time. I was going through a lot of mental pressure and was suffering from a lot of depressive symptoms as low mood, lack of motivation, excessive guilty and worry. Because of these symptoms, my study has been affected. I was not able to work and study at all. That's why my parents were sending me all the money for my fee and for some expenses as well.

   5. I had tried to get admission in many Institutes during last months but no one was taking me in as I had breached the condition of my student visa. But then I applied for Advance diploma in Information Technology from AAPoly and luckily also got the COE (attached). I am genuinely looking forward to complete my studies as there were some exceptional reasons before because of which I was not able to finish it.

   6. Furthermore, I want to mention that I came to Australia in my teenage and did my all study here in Australia. So now I want to complete all my qualification here because I will not be able to finish the remaining in India as the requirements are different there to enrol in study. Moreover, my parents have spent a lot of money on my education so they will be under emotional and financial stress if my visa would be cancelled. As they have sent me here for my bright future but the circumstances did not go into my favour and I had already suffered a lot.

   7. My past history with the immigration department is very good as I have always abided by the law and regulations. I have complied with all the imposed conditions on his student visa except the one which is 8202(2)(a) because of my poor mental condition.

   8. I would like the case officer to consider the relevant matter before cancelling my visa. The reasons for failing to keep the enrolment were beyond my control as I was under stress and mental pressure. But now I have already got my COE from AAPoly and classes will start from 25th September 2017. I truly want to declare that I will abide by the visa conditions during my studies in future.

   9. At the end, I would like to humbly request the Delegate from the Department of Immigration and Border Protection to consider all the circumstances that are mentioned above in the submission and revoke the cancellation of student visa (573).

8. The applicant indicated that he had no specific comments to make in relation to this letter.

9. The Tribunal then referred to the information the applicant had provided to the Tribunal. The Tribunal referred to the applicant’s request for a fee reduction on 31 October 2017. In his application for a fee reduction the applicant said he had to pay his friend $900 because he had to take a loan to apply for the AAT. The applicant then indicated he actually had to borrow $900 from his friend in order to apply to the AAT and pay the application fee. The Tribunal asked the applicant why he had to borrow the money and he said he did not have the money at that time. The Tribunal referred to the applicant’s form where he indicated his parents would support him in relation to his costs to stay in Australia if his visa was granted. The Tribunal put to the applicant that the two pieces of information did not align where on the one hand he was indicating that his parents would support him but on the other he was borrowing money to pay his application fee for the AAT. The Tribunal put to the applicant that this information indicated that the applicant did not have the financial capacity to pay to support himself to stay in Australia if his visa was granted, in addition to the information already considered in the hearing that twice before the applicant had had his course enrolment cancelled due to non-payment of fees. In response the applicant said his parents would help him. He also indicated that at the time he had paid fees for the course and that he didn’t have any money. The Tribunal put to the applicant that twice before his course enrolment was cancelled due to non-payment of fees and that in addition he asked the AAT for a fee reduction for his application for review and even then he had to borrow money to pay the reduced fee. The Tribunal put to the applicant that as a holder of a student visa he is meant to be able to pay his course fees and pay his own way and support himself.

10. The Tribunal put to the applicant that subject to his comments there was a series of instances that indicate to the Tribunal that there was probably a low likelihood of the applicant being able to afford to pay his course fees. In response he indicated he did not wish to make any comment.

11. The Tribunal noted that the applicant had said he paid $2500 on 14 September 2017 for his tuition fees but that he would reasonably wear his tuition fees for his course, which were much more than that. The Tribunal noted that the applicant had said he’d paid his agent $1000. The Tribunal noted that the applicant said that since filing the response to the NOICC he had been mentally unstable and hadn’t found himself in a position to work as driving a scooter needed a high level of concentration and awareness and he didn’t want to pose a risk to the public or to his wife and end up in an accident.

12. The Tribunal put to the applicant that he had provided a number of statements in relation to his mental health but that his claims of poor mental health did not align with the fact that he had never had any diagnosis of depression and anxiety nor any treatment for depression and anxiety. The Tribunal put to the applicant that there was very little evidence independent from the applicant’s oral evidence supporting his claim that he had mental health difficulties.

13. The Tribunal put to the applicant that he had claimed that he had had long-term mental health issues for years and in response the applicant said “yep.” The Tribunal put to the applicant that his claimed mental health condition was probably not assisted by his substance abuse. The applicant denied that he was abusing any substances currently.

14. The Tribunal referred to the bank statements the applicant provided to the Tribunal. The Tribunal indicated to the applicant that his statements indicated that he had no money. In response he said “yeah no money – that’s been the issue.”

15. The Tribunal referred to the bills that the applicant provided. The Tribunal referred to the response he had received from a member of the Tribunal indicating that his application for fee reduction was granted. The Tribunal noted that the staff member who granted the applicant’s application for a fee reduction came to the conclusion that she was satisfied that the applicant was under significant financial burden at that time and as a result the payment of the fee may cause him severe financial hardship so she reduced the fee. The Tribunal put to the applicant that as a result of this information the applicant appeared not to be in a very strong financial situation and that given the history discussed during the hearing the likelihood of the applicant being able to afford his course fees was not high. When the Tribunal asked the applicant whether he would agree with this statement he said “yep.”

16. In respect of the above, the Tribunal makes the following findings:

    ·The applicant was granted his student visa on 28 September 2016.

    ·In an endeavour to explain the circumstances as to why he breached his visa condition when he ceased to be enrolled in a registered course of study, the applicant raised circumstances prior to the issue of the visa being granted on 28 September 2016. It is in this context that the applicant indicated that these prior circumstances had an impact on the reasons why he breached the condition of his student visa that was granted on 28 September 2016.

    ·The applicant has been in Australia since 2009, where he completed his secondary education before enrolling in an Associate Degree in Information Technology in 2011.

    ·From 2011 to 2016, some five years, the applicant was enrolled in the Associate Degree in Information Technology but he never completed that course.

    ·The applicant has been involved with illicit and prohibited substances, namely marijuana.

    ·The applicant ceased to be enrolled in a registered course of study on 24 February 2017.

    ·Since he obtained his student visa in 2009, the applicant has not completed any of the courses in which he had enrolled.

    ·The applicant remained un-enrolled in a registered course of study for approximately seven months until the Department provided the applicant a NOICC.

    ·At no time did the applicant contact either his course provider or the Department about his situation.

17. The Tribunal does not accept that the applicant has the financial capacity to pay his course fees and support himself even if he were to have his student visa. This finding is supported by the following findings:

    ·At the beginning of the hearing, the applicant freely admitted that the reason why he did not remain enrolled between 24 February 2017 and 14 September 2017 was because he didn’t have any money and he didn’t have a job so he couldn’t pay the fees and that was why he did not remain enrolled.

    ·The applicant freely admitted that there was another instance prior to 2017 where his course provider cancelled his enrolment in 2016 (in the Bachelor’s degree) because he could not pay his course fees.

    ·In the applicant’s request to the Tribunal for a fee reduction on 31 October 2017, he indicated that he had significant financial difficulties. The applicant freely admitted to the Tribunal that he had no money and that has been an issue for him. The applicant agreed with the Tribunal officer’s assessment from 13 November 2017 that, in making her decision to grant the applicant a reduced fee, he was under significant financial burden at that time and as a result the payment of the fee may cause him severe financial hardship. The applicant agreed that, as a result of this information, he appeared not to be in a very strong financial situation and that, given the history discussed during the hearing, the likelihood of the applicant being able to afford his course fees was not high.

18. Given that the applicant acknowledged that he had provided a financial guarantee as part of his student visa that he could afford to pay his course fees and support himself, the Tribunal places high weight on the finding that the applicant does not have the financial capacity to pay his course fees and support himself even if he were to have his student visa.

19. The Tribunal places very low weight on the applicant’s assertions that mental health issues caused or contributed to the circumstances  that led to his ceasing to remain enrolled in a registered course. This finding is supported by the following findings:

    ·Jaishree Bedi is not an Australian registered health practitioner. The Tribunal has no way of testing any of the evidence Jaishree Bedi provided in her non-NAATI accredited translated statement. In any event, the information provided in Jaishree Bedi’s report lacked detail and was very general, and there were no clear identifiable points she was trying to make apart from indicating the applicant was subject to some sort of “mental tension.” Accordingly, the Tribunal places no weight on the information in the report from Jaishree Bedi.

    • The report from Roshini Varghese dated 19 September 2017 shows that a) Roshini Varghese had only seen the applicant once on 19 September 2017, and b) Roshini Varghese had made no assessment of the applicant’s mental health condition other than repeating what the applicant had told to Roshini Varghese during the session on 19 September 2017. Accordingly, the Tribunal places very low weight in the applicant’s favour on the information in the report from Roshini Varghese.

    ·The report from Beth Angus dated 26 August 2015 makes reference to “numerous psychosocial stressors” (unnamed) and “problematic substance use” that in her opinion were having a severe impact on the applicant’s ability to study. In her report, Beth Angus makes clear that “problematic substance use” was having a detrimental impact on the applicant’s ability to study and the Tribunal places high weight on this information against the applicant. The applicant agreed that his choice of using marijuana would likely not assist him in his studies. However, despite this, the applicant freely admitted using marijuana as recently as two years ago when his visa got cancelled. Accordingly, the Tribunal finds that the applicant’s use of marijuana did have an adverse impact on his ability to study and that, even though he claimed he did not use marijuana anymore, he still continued to use marijuana two years after the problem was identified by Beth Angus in 2015. In any event, the Tribunal places low weight on the three reports from Beth Angus from 2015 because they do not assist the Tribunal in relation to why the applicant he did not remain enrolled for the six-month period in 2017 – the relevant period of the breach.

    • The report from Stefan Urosevic dated 22 September 2018 is barely five lines based on a one-off visit with the applicant who told Stefan Urosevic that he was stressed, not because of anything else, but because of the “Immigration Department’s recent decision to revoke his visa.” Accordingly, the Tribunal places very low weight in the applicant’s favour on the information in the report from Stefan Urosevic.

    ·The applicant agreed that he did not have any documentation in respect of any diagnosed mental health condition because he did not go to the “doctor.”

20. The Tribunal gives low weight in the applicant’s favour in respect to the letter dated 21 September 2017 from the applicant’s parents – Mr Vinod Kumar and Mrs Sudesh Kumari because it is understandable that the applicant’s parents would write in support of their son.

1. In respect to the finding that the applicant remained un-enrolled in a registered course of study for approximately seven months until the Department provided the applicant a NOICC, the Tribunal places high weight on this information against the applicant because this information demonstrates that the applicant did not actively engage with the Department when he was in breach of his student visa condition 8202.

2. In assessing the above, the Tribunal finds that the applicant failed to take reasonable steps in regard to maintaining his enrolment in his registered course of study. Accordingly, the Tribunal gives high weight on this information against the applicant in regard to this factor.

   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

3. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was 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

4. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

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

6. The applicant indicated in response that he would have to start all over again with his studies. The Tribunal asked the applicant what would happen to his wife who was present at the hearing. In response the applicant indicated that his wife (who is not an Australian citizen) would travel back to India with him, but then later indicated he would go to Germany with his wife. The Tribunal accepts these circumstances and gives low weight in the applicant’s favour in regard to this factor.

   Past and present behaviour of the applicant towards the Department

7. 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

8. The applicant does not have any dependents on his student visa who would be affected if his student visa was cancelled.

9. 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

10. 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.

11. 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.

12. 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.

13. The Tribunal places low 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

14. The Tribunal asked the applicant if he feared anything in returning to India. In response he said “I don’t know I haven’t been there for like 10 years” and “it will be very different.”

15. The applicant indicated he had a fear of guilt because he had not done anything or finished his studies and that in India he had to start his studies all over again – starting in year 11. The applicant said he didn’t think that India would recognise the fact that he had done year 12 in Australia because that’s what his dad had told him.

16. The applicant’s wife Maria then indicated she wished to give evidence and was then sworn in. The applicant’s wife then said the applicant was concerned that there were no prospects where he had come from in India. His wife said the applicant told her he was very afraid of going back as he didn’t know what was going to happen there and that there were no jobs there.

17. The Tribunal asked the applicant’s wife if there was anybody who had hurt or was threatening to hurt the applicant. Both the applicant and the applicant’s wife said “no.” The applicant’s wife indicated that in India people are not like people in Australia. The applicant’s wife indicated there were poor people in India and she didn’t know what would happen there.

18. In consideration of the above, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

19. When the Tribunal asked the applicant whether there were any other relevant matters before the Tribunal, he said “no.”

20. No other relevant matters were put to the Tribunal.

    Conclusion

21. The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa on 28 September 2016.

22. The Tribunal finds that the applicant has not been enrolled in a registered course of study between 24 February 2017 and 14 September 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

23. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.

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

    DECISION

25. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector 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.