Arumalla (Migration)

[2019] AATA 4231

Arumalla (Migration) [2019] AATA 4231 (19 June 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Koti Reddy Arumalla

CASE NUMBER:  1824680

DIBP REFERENCE(S):  BCC2018/1621227

MEMBER:Jason Harkess

DATE OF DECISION:  19 June 2019

DATE CORRIGENDUM

SIGNED:9 October 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The words on the decision record cover page which refer to the applicant as ‘Mr Kori Reddy Arumalla’ should be replaced with ‘Mr Koti Reddy Arumalla’.

Jason Harkess
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Kori Reddy Arumalla

CASE NUMBER:  1824680

HOME AFFAIRS REFERENCE(S):     BCC2018/1621227

MEMBERS:Dr Jason Harkess

DATE:19 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) visa

Statement made on 19 June 2019 at 3:00pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – course enrolment – not enrolled – non-payment of fees – did not attend hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 17 August 2018 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 20 June 2017 with an original expiry date of 30 August 2018 providing for approximately 14 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia. Specifically, the visa had been granted on the basis that the Applicant would complete a Master of Management (Project Management) which had commenced on 18 January 2017 and was due to be completed on 30 June 2018 (‘the Master’s course’).

4. The delegate cancelled the Applicant’s visa on the basis that the Applicant had breached that condition of the visa which required him to continue to be enrolled 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.

5. By letter dated 29 May 2019, the Tribunal invited the Applicant to attend a hearing of his application before the Tribunal at 10:00 AM on 19 June 2019. The Applicant wrote to the Tribunal on 18 June 2019, the day before the scheduled hearing was to take place, declining the invitation to attend the hearing. The Tribunal has therefore proceeded to make a determinination in relation to the present application without a hearing having taken place.

6. For the following reasons, the Tribunal considers that the decision under review ought to be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. 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 20 October 2017 to 17 August 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to approximately 9 months during which the Applicant was in continuous breach of the visa.

2. 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.

   [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].

3. 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.

4. The PRISMS report obtained by the delegate indicated that the Applicant’s course provider, had cancelled his enrolment in the Master’s course due to the non-payment of fees on 20 October 2017. The PRISMS report indicated that he had not been enrolled in any registered course since that date.

5. The Department of Home Affairs wrote to the Applicant by letter dated 9 August 2018, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). The NOICC set out particulars of the alleged breach by the Applicant of condition 8202. It specified 20 October 2017 as the date on which the Applicant’s enrolment had apparently ceased. The Department’s letter also drew attention to the fact that the PRISM’s database appeared to show that he had not been enrolled in any registered course of study since that time. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa. The Applicant did not respond to the Department’s letter.

6. In the Applicant’s response to the Tribunal’s invitation to attend a hearing, which the Tribunal received on 18 June 2019 (‘the Applicant’s response’), the Applicant appeared to concede that his enrolment in the Master’s course had been cancelled due to his failure to pay tuition fees on time. Accordingly, it seems reasonably clear that the delegate was correct in reaching the conclusion that the Applicant had been in breach of his visa for the period of time identified.

Consideration of the Discretion to Cancel the Visa

1. 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. In the Applicant’s response, the Applicant stated that his inability to pay his tuition fees for the Master’s course on time occurred because he ‘had an issue with my bank loan account in my home country’. He said that he had hoped he could resolve the issue with respect to his fees before his enrolment was cancelled, but that he was unable to do so. He said that he continued to attend classes and do course work even though his enrolment had been cancelled. Eventually, he stated, he returned to India so that he could resolve the issue he was having with his bank. Beyond this written statement made by the Applicant, the Applicant produced no other evidence in support of his application for review of the decision to cancel his visa.

3. The Applicant’s explanation for his failure to pay his fees on time is unsatisfactory. It is an essential ongoing requirement for all student visa holders to maintain a sufficient level of finance to meet their tuition, living and other costs for the duration of their stay in Australia.[2] For the Applicant to simply state, without further elaboration, that he ‘had an issue’ with his bank does not in any way found an excuse for breaching his visa. The Applicant failed to pay his tuition fees and the course provider understandably took steps to cancel his enrolment. The primary purpose for which the visa had originally been granted then ceased to be served.

   [2] See Migration Regulations 1994 (Cth), Sch 2, cl 500.214.

4. The Tribunal accepts that the cancellation of his visa may cause the Applicant some hardship. He will not be able to complete his Master’s course. In the Applicant’s response, he said that he wanted to ‘fulfil his dream’ of completing the course so as to improve his career prospects in India. However, in light of the absence of a satisfactory explanation for the Applicant’s failure to meet his tuition fee obligations, this consideration does not weigh heaving in his favour.

5. 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.

6. The Tribunal notes that if the visa is cancelled, the Applicant will 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.

7. 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 dention 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.

8. Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

9. In all the cirucmtances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) visa.

Dr Jason Harkess
Member