Almencheruvu (Migration)

[2018] AATA 5215

Almencheruvu (Migration) [2018] AATA 5215 (10 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vinay Reddy Almencheruvu

CASE NUMBER:  1708445

HOME AFFAIRS REFERENCE(S):           BCC2017/590595

MEMBER:Joseph Lindsay

DATE:10 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 10 December 2018 at 3:52pm

CATCHWORDS
MIGRATION – Student (Class) (TU) visa – Subclass 573 Higher Education Sector – cancellation – failed to remain in a registered course – no higher education courses completed in 3 years – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 116(1)(b), 359AA

Migration Regulations 1994, Schedule 2, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to remain in a registered course of study and breached condition 8202(2)(a) of his student visa. The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 20 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.

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

5. 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

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 (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?

7. 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).

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

9. The Tribunal notes the delegate’s decision that indicated the applicant had not been enrolled in a registered course of study since 4 August 2016.

10. In accordance with s.359AA of the Act, the Tribunal discussed the applicant’s Provider Registration and International Student Management System (PRISMS) record with him. The PRISMS record states that the applicant notified the course provider of cessation of his studies and on 4 August 2016 the course provider cancelled the applicant’s course enrolment.

11. In the hearing, the Tribunal endeavoured to ask the applicant whether he agreed he was not enrolled in a registered course of study and in doing so breached condition 8202. What followed was a lengthy back and forth between the Tribunal and the applicant where the applicant denied that he had not been enrolled in a registered course of study, in this case, the Master of Technology (Enterprise Systems). The applicant denied that he was not enrolled in the Master of Technology (Enterprise Systems). Yet when the Tribunal asked the applicant to provide documentary evidence that would show that he had remained enrolled in his course, he could not provide any such evidence.

12. Accordingly, the Tribunal places high weight on the information from the delegate’s decision and the PRISMS record as indicated above and low weight on the applicant’s claims that he had remained enrolled in a registered course of study.

13. 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

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

15. In response to this issue at the hearing, the applicant indicated his main purpose in travelling to Australia was to study. He indicated that once he finishes his course he wants to return to India.

16. 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

17. In response to this issue at the hearing, the applicant indicated he had complied with his visa conditions. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202.

18. 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)

19. In response to this issue at the hearing, the applicant indicated that if his visa was cancelled he would suffer some hardship because it would not be good for his career to go back to India without his higher education qualification.

20. In consideration of the applicant’s response, the Tribunal accepts that the applicant may suffer some hardship if his visa was cancelled in the circumstances as he has detailed. However, the Tribunal notes that the applicant has already completed a qualification in Information and Communications Technology (ICT) from Jawaharlal Nehru Technological University (JNTU) in India and he already has programming skills and software design skills. Accordingly, the Tribunal finds that the applicant is likely to be able to find work in his chosen field of endeavour should his visa be cancelled.

21. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

22. There is no evidence that the visa holder has been uncooperative with the Department in the past.

23. The Tribunal accepts that there is no evidence that the visa holder has been uncooperative with the Department in the past. Having taken this into consideration, I give these considerations some weight in the visa holder’s favour.

    Whether there would be consequential cancellations under s.140

24. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his student visa.

25. The Tribunal places low 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

26. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa.

27. The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully.

28. At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. 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 chose not to return to India.

29. 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.

30. 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

31. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled.

32. The Tribunal places low weight on this information in the applicant’s favour.

    The circumstances in which the ground for cancellation arose

33. A large part of the applicant’s submissions relate to the circumstances in which the ground for cancellation arose, including:

    a.        the applicant’s response to the Department dated 5 April 2017.

    b.        the applicant’s submissions to the Tribunal dated 7 February 2018.

    c.        the applicant’s submissions to the Tribunal dated 26 September 2018.

    d.        the applicant’s submissions to the Tribunal dated 27 September 2018.

34. In the applicant’s response to the Department dated 5 April 2017, the applicant indicated that he did not pay his tuition fees on time. He indicated that the reason he did not pay his fees on time was due to demonetisation in India. He indicated that he then paid some fees after his course was cancelled, it appears, on the promise that he could sit some exams. He then indicated that he enrolled in a Graduate Diploma of Management on 4 April 2017. He claimed that ATMC, the course provider, fabricated a claim against him that he was not attending his course.

35. In the applicant’s written submissions to the Tribunal dated 7 February 2018, 26 September 2018 and 27 September 2018, he indicated that he failed some subjects. He indicated that he did not pay his course fees on time due to a) poor farming conditions being experienced by his father who is the family breadwinner and b) demonetisation in India. He indicated he paid his course fees after his course provider cancelled his enrolment. He then indicated that he enrolled in a Graduate Diploma of Management. He provided a document from ATMC/Federation University dated 15 March 2017 indicating that he had paid course fees for TP2016-17 (July 2016) and that he was enrolled in the Master of Technology (Enterprise Systems). He provided his statement of results for the subjects he undertook in 2015 and 2016. He provided a letter of offer for a Diploma of Business. He provided an email dated 26 September 2018 from ATMC Support indicating that his enrolment was cancelled in April 2017.

36. The issues raised in the applicant’s written submissions about his circumstances were discussed during the Tribunal hearing. The following issues of concern were put to the applicant.

37. Fabrication by ATMC: In the hearing, the Tribunal asked the applicant about his claim that ATMC fabricated a claim against him that he was not attending his course. The applicant was evasive in his response and would not directly answer the Tribunal’s question. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

38. Course fees: In regard to the applicant’s claims that he did not pay his course fees on time due to poor farming conditions being experienced by his father who is the family breadwinner and demonetisation in India, the applicant provided very little information at the hearing in support of these claims. He claimed he did pay his course fees after they were due. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

39. Enrolment error: The applicant claimed that there was an error in regard to his enrolment where, as of 15 March 2017, he was enrolled in the Master of Technology (Enterprise Systems). However, this enrolment information is not reflected in the applicant’s PRISMS record. The only further enrolment noted on the PRISMS record is the Graduate Diploma of Management commencing 15 April 2017. There is no indication that the applicant’s PRISMS record is not accurate. Accordingly, the Tribunal places high weight on the applicant’s PRISMS record that he was not enrolled in the Master of Technology (Enterprise Systems) as of 4 August 2016 and gives low weight in the applicant’s favour in regard to this factor.

    Any other relevant matters

40. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated there were no matters he wanted to raise. 

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

    Conclusion

42. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 13 November 2015, now over three years ago, the applicant has not completed any higher education courses.

43. The Tribunal finds that since 4 August 2016 the applicant has not been enrolled in a registered course of study at the higher education level and, accordingly, the applicant has not complied with condition 8202(2)(a).

44. The applicant knew that he was required to pay his course fees and he provided a financial guarantee to the Department before his visa was granted. The Tribunal finds that the circumstances that led him to not pay his course fees and not be enrolled in a registered course of study, as detailed above, are not exceptional circumstances. 

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

    DECISION

46. 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.