VATTIKUNTA (Migration)
[2019] AATA 6528
•18 November 2019
VATTIKUNTA (Migration) [2019] AATA 6528 (18 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr ASHOK BABU VATTIKUNTA
CASE NUMBER: 1907092
HOME AFFAIRS REFERENCE(S): BCC2018/5357532
MEMBER:Dominic Triaca
DATE:18 November 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Statement made on 18 November 2019 at 11:53am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – limited academic progress – financial hardship – retained employment in Australia – career transition plans – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2; Schedule 8; Condition 8202CASES
Boettcher v Driscoll (2014) SASC 86
Dimic v Djekovic (2014) NSWSC 1502
Paduano v Minister for Immigration and Multicultural Affairs (2005) 143 FCR 204STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.The Applicant is a citizen of India.This is an application for review of a decision dated 14 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
2.The Applicant’s student visa was granted on 9 March 2017 with an original expiry date of 15 March 2019, providing for 2 years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.
3.The visa had originally been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, a Masters in Project Management at Central Queensland University, located in Sydney NSW. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to maintain enrolment 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.
5.The Applicant appeared before the Tribunal at a hearing convened on 18 November 2019 to give evidence and present arguments.
6.For the following reasons, the Tribunal has decided to affirm the decision under review.
CONSIDERATION OF CLAIMS AND EVIDENCE
7.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?
8.Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 8 March 2018 to 14 March 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to approximately 12 months during which the Applicant was in continuous breach of the visa.
9.The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.
[1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].
10.The Applicant’s evidence was that he commenced studying for the Masters of Project Management at the University of Central Queensland shortly after his arrival in Australia in March 2017. However, the PRISMS report also indicates that this enrolment was cancelled after the second semester of studies in March 2018 due to the non-payment of fees.. From that point, the Applicant remained in continuous breach of his visa by not being enrolled in any registered course of study.
11.The Department wrote to the Applicant on 4 February 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.
12.The Applicant provided a written response to the Department on 9 February 2019 (‘the Applicant’s NOICC response’). In that response, the Applicant appeared to acknowledge the breach of the visa condition. At the hearing before the Tribunal, the Applicant also admitted in evidence that he was in breach of condition 8202 for the period alleged by the delegate.
13.Based on the material available, the Tribunal is therefore satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202 of the visa.
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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’
16.At the hearing before the Tribunal, the Applicant accepted that his academic results in his first year in Australia were poor. He says that in each of the first and second semesters he passed only one out of four units. At the conclusion of the first year, he was unable to obtain a further loan due to his poor academic performance and as a result he did not pay the fees for the following year and his enrolment was cancelled by the University.
17.He says that following the cancellation of his enrolment he did not make any attempts to defer his course or seek assistance from the Department. He did not return home until such time as his financial situation resolved itself. Instead, he chose to remain in Australia without studying for an extended period of time. He says that he worked at a petrol station in Maitland in New South Wales, where he worked for a period of approximately 2.5 years until the cancellation of his student visa meant he lost work rights in Australia.
18.He says that he does not wish to return to study a Masters of Project Management. He says that whilst in Australia he has developed an interest in filmmaking and hopes to travel in Australia, making videos to upload to Youtube and intends to enrol in filmmaking classes in the future.
19.In his response to the NOICC, the applicant indicated that he was “affected mentally” by the financial issues he faced. However, in his evidence he stated that he had never consulted a Doctor in relation to mental health issues, had no formal diagnosis in relation to his mental health and, in any event, he considers he no longer suffers from any mental health issues. On the Applicant’s evidence, a clinically diagnosable mental health condition was not affecting him.
20.The Applicant admitted that he did not take any steps to enrol in another course in Australia. He says he ‘gave up’ studying once he faced financial issues. The Applicant admitted that he was working during 2017 and 2018, utilising the 20 hours per week that his student visa entitled him to. However, it was clear from his evidence that he chose not to prioritise his studies. He was unable to provide any satisfactory explanation as to why he remained in continuous breach of his visa for approximately 12 months and there is no evidence to suggest he made any meaningful effort to return to study following the cancellation of his enrolment.
21.The Tribunal accepts the applicant’s purpose of travelling to Australia was to study. This is evidenced by his enrolment and commencement of studying at the University of Central Queensland. However, it is clear that his purpose of being in Australia evolved and by early 2018 his purpose was not study but to work. The evidence is that he continued to benefit from Australia’s economy by working at relatively high wages (compared to his home country) as he was entitled to do, for 20 hours per week. He chose to prioritise work rather than the fundamental purpose for which the visa had been granted.
22.Whilst the applicant states that he intends to study “filmmaking” in the future, his evidence was vague and unconvincing and he was unable to give any detail of the particular course he intends to study. Given his poor academic progress in the past, the Tribunal does not consider that the applicant is likely to return to study in any meaningful way if he is given the opportunity.
23.The Tribunal does not consider the applicant has demonstrated any compelling need to travel to or remain in Australia. The term “compelling need” is not defined in the PAM3. I take it to have its ordinary meaning, having regard to both the context and purpose of the PAM3 and s116 of the Act. There is nothing to indicate that the Parliament intended the phrase “compelling need” to have anything other than it’s natural and ordinary meaning.
24.The term compelling was considered by Crennan J (as her Honour was then) in Paduano v Minister for Immigration and Multicultural Affairs ((2005) 143 FCR 204[2] her Honour made the following points, compel and compelling are words of ordinary meaning and not confined to physical and legal force but includes moral force such as from a compelling argument.
[2] At [31] – [45]
25.Need has been considered variously[3] to mean more than ‘want’ but falls short of “cannot survive without.”
[3] Dimic v Djekovic (2014) NSWSC 1502 per Hallen J at [111]; Boettcher v Driscoll (2014) SASC 86 at [41] per David J;
26.In the end, the Tribunal is left without any satisfactory explanation for the Applicant’s decision to continue to breach condition 8202 of his student visa. It seems to have been a deliberate decision on the part of the Applicant.
27.The applicant said that it would be difficult for him to return to India and he does not wish to return. However, the Tribunal does not consider that he gave any evidence of any real hardship that will he will suffer if he returns to India. The Tribunal has taken into account that, if his visa is cancelled, the Applicant’s hopes of obtaining an Australian qualification will not be met. He will be disappointed, his family will be disappointed, and he will suffer some degree of financial loss and inconvenience for having to return to India without a Masters degree. However, this concern must be tempered with the breach of the most fundamental condition of his visa that continued for a relatively lengthy period. The Tribunal also considers that any hardship he suffers will be tempered by the fact that he holds a Bachelor of Technology in Civil Engineering degree from his home country which should assist him in finding employment in his home country. The Tribunal does not accept his evidence that this degree is of “no use” to him in India. It seems unlikely this would be the case and he provided no independent evidence to support this proposition.
28.The Tribunal notes that if the visa is cancelled, the Applicant may become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of visa conditions.
29.The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations that would occur by the operation of s 140 of the Act if the Applicant’s visa is cancelled.
30.The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements for him to depart Australia. He is a citizen of India and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.
31.At the hearing, the applicant provided the Tribunal with a copy of his academic record from Vignan University in India from 2015 and a copy of his Certificate of Bachelor of Technology in Civil Engineering from that University. He also provided bank statements from the State Bank of India. The Tribunal has read and had regard to the documents the applicant provided.
32.Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.
33.There do not appear to be any other matters relevant to the application.
34.In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.
35.Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
36. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
D Triaca
MemberATTACHMENT
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.
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