BODAPATI (Migration)

[2018] AATA 5106

BODAPATI (Migration) [2018] AATA 5106 (19 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ADITYA VARDHAN BODAPATI

CASE NUMBER:  1723879

DIBP REFERENCE(S):  BCC2017/2714732

MEMBER:Tigiilagi Eteuati

DATE AND TIME OF

ORAL DECISION AND REASONS:          19 July 2018 at 4:00 pm (QLD time)

DATE OF WRITTEN RECORD:                14 August 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 14 August 2018 at 7:25pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa – an unlawful non-citizen –not enrolled in a registered course of study – breach of condition 8202 – withdrawal from his master’s course – not a genuine student – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8

APPLICATION FOR REVIEW

1. This is an application for review of a decision, dated 29 September 2017, made by a delegate of the Minister of Immigration, to cancel the applicant’s subclass 500 visa, under section 116(1)(b) of the Migration Act.

2. At the hearing on 19 July 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The delegate cancelled the visa on the basis that the applicant had breached the condition of his visa to remain enrolled in a registered course. 

4. The issue in the present case is whether the ground for cancellation is made out and if so, whether the visa should be cancelled. 

5. The applicant appeared before the Tribunal on 19 July 2018, to give evidence and present arguments.  The applicant’s representative was present during the hearing.

   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 of the Migration Regulations. If the applicant has breached that condition, under section 116 of the Act, the visa may be cancelled.

   Did the Applicant Comply with Condition 8202?

7. Condition 8202, as it applies in this case, requires a visa holder to remain enrolled in a registered course.

8. In the present case, the delegate found that the applicant had not been enrolled in a registered course, from 20 January 2017 to 15 September 2017. 

9. The applicant has admitted that he was not enrolled in a registered course during that period and on the evidence before the Tribunal, the applicant was not enrolled in a registered course.  Accordingly, the applicant has not complied with condition 8202.

   Consideration of Discretion to Cancel the Visa

10. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant and his representatives, both at the hearing and by way of submission as to why the visa should not be cancelled.

12. The Tribunal has also had regard to government policy guidelines contained in the Department’s Procedures Advice Manual.

13. At the hearing, the applicant indicated that when he arrived in Australia, in June 2014, he was enrolled in a Master of Information Technology degree and Master of Business Administration degree at James Cook University.  That course was to begin in July 2014 and end in July 2016.

14. The applicant explained that he commenced his studies in mid-2014, but that in August 2014, he was involved in a motor vehicle accident while he was riding a scooter for a part-time job at Domino’s Pizza.  He said that he was unable to attend to any studies for a period of about three and a half weeks from that point.  He said that examinations for the first trimester of his study began in September 2014, but that due, at least in part, to his injuries and his inability to attend classes or study, he failed all three units in which he was enrolled that semester.

15. The applicant said that he tried to negotiate with James Cook University, to allow him to retake the semester at no extra expense, due to his motor vehicle accident, but he explained that James Cook University was unwilling for him to do so.  He said that he would have been required to pay some $8000 to repeat that semester.

16. The applicant explained that he did not study from September 2014 until May 2015.

17. The Tribunal put to the applicant in the required way, that it had information from the PRISMS systems, which indicated that the applicant’s enrolment in the Master of Information and Technology and Master of Business Administration, was cancelled in April 2015, for disciplinary reasons and that the applicant was suspended for three years, from James Cook University.

18. The applicant indicated that he had not previously heard this, that he did not know this, and that James Cook University had not communicated that he had been excluded from that university for disciplinary reasons and suspended for a period of three years.

19. The applicant ceased studying at James Cook University, he said because he thought that he did not have the ability to successfully undertake the Masters programs there and also, that he had developed an interest in management.  He said that although he had held a degree in computer science and engineering from a university in India, he had no real interest in computer science and engineering, but rather, had undertaken that course because of pressure from his family and society for him to undertake that course.  He also indicated that prior to coming to Australia, he had worked for two years as an engineer in India.

20. The applicant said that he had an interest in management and therefore enrolled in a Diploma of Management in May 2015.  He said that he completed this course successfully at some time in late 2015, although he did not provide any documentary evidence to show that this was the case.  However, for the purpose of this hearing, the Tribunal is willing to accept that the applicant successfully completed a Diploma of Management in late 2015.

21. The applicant then began an Advanced Diploma of Leadership and Management, beginning in late 2015, which was supposed to run until late 2016.

22. The Tribunal put to the applicant in the required way, that his enrolment in the Advanced Diploma of Leadership and Management was cancelled in June 2016, for non-payment of fees.

23. The applicant indicated that he had ceased his studies in the Advanced Diploma of Leadership and Management, because he had thought that he had undertaken sufficient studies in management, by completing the Diploma of Management.  He said at the time that he had no further interest in management, that he therefore discontinued his studies in the Advanced Diploma of Leadership and Management.

24. The applicant does not appear to have been enrolled in any course, from June 2016 until August 2016, when he enrolled in a Certificate IV in Commercial Cookery.

25. At this point, the Tribunal notes that the applicant would have been in breach of condition 8202 at every point when he ceased to have an enrolment in a registered course.  The applicant would have also been in breach of condition 8516, when his enrolment in his Masters degree ceased in 2015.

26. The applicant applied for a subclass 500 visa on the basis of his Commercial Cookery course enrolment and that was granted in September 2016. 

27. The applicant provided evidence and the Tribunal accepts, that the institution operating the Commercial Cookery certificate ceased to operate and the applicant’s enrolment in that course was cancelled on 20 January 2017.

28. The applicant explained that at this point, he wanted to do commercial cookery because he had a great interest in cookery and that he had, at that point, given up his interest in management.

29. The applicant said that after the cancellation of his cookery course in January 2017, he had hoped to be refunded some $6000 in fees, but that the institute or the organisation responsible for refunding him, only refunded him a fraction of that amount. 

30. Despite the applicant saying that he had no further interest in management, the applicant said that he went on to attempt to enrol at Holmes College and the University of Southern Queensland in Toowoomba, in April and May 2017, to be enrolled in a Master of Business Administration.  He said that he was unsuccessful in securing enrolment in either of these courses.

31. The applicant remained unenrolled in any course from that time, until he enrolled in a Graduate Diploma of Management on 15 September 2017, some four days after he received the Notice of Intention to Consider Cancellation, sent by the Department.

32. The Tribunal raised that it was curious that the applicant had enrolled in a management diploma, as he had already completed a management diploma and he had indicated to the Tribunal that he had no more interest in management.

33. The applicant said that he was guided at the time by the advice of a migration agent.

34. The applicant’s visa was cancelled on 29 September 2017.

35. Although applicants for review in the Tribunal are normally granted a bridging visa while their review applications are ongoing, and the applicant applied to this Tribunal for review of the Department’s decision in October 2017, it does not appear that the applicant currently holds any visa and that he is in fact, an unlawful non-citizen in Australia, liable to be detained by the Department of Immigration.

36. The applicant says that he was unaware that he could have applied for a bridging visa with work and study rights, in order to continue his studies in Australia.  He told the Tribunal that if he is allowed to remain in Australia, that he intends to apply for enrolment in a Master of Business Administration at a university here. 

37. The applicant indicated that if his visa had not been cancelled, it would have expired in February 2018. 

38. The Tribunal asked the applicant whether he or any of his family members would suffer any hardship if his visa were to remain cancelled.  The applicant indicated that he would suffer hardship, as he was now 29 and that if he returned to India, he would be expected to marry before the age of 30.  The applicant conceded that he would be able to study a Master of Business Administration in India and that he would be able to study a similar course in a country other than India and Australia.  The applicant gave evidence that it was his strong preference to be able to complete a Master of Business Administration in Australia.

39. The Tribunal raised with the applicant, its concern that, because the applicant had withdrawn from his studies after the first semester in his master’s programs at James Cook University, because he had not sought re-enrolment in a master’s course until 2017, because he went on to enrol in a number of apparently unrelated vocational courses, first in management and then commercial cookery, because he had not been enrolled in any courses between January and September 2017 and that he has not sought to enrol or study any courses from that time until now and that the applicant only re-enrolled in a course after he was issued the Notice of Intention to Consider Cancellation of his visa, the applicant may not have the will or desire to successfully undertake studies in Australia.

40. The applicant indicated that it was his strong desire to complete a Master of Business Administration in Australia.

41. The Tribunal also raised its concern that, as the applicant had initially come to Australia to study a master’s degree after successfully completing a bachelor’s degree at a recognised university in India, and then had given up that course shortly after the first semester he attended the course, because he then went on to study different courses, from management, to an Advanced Diploma of Leadership and Management to commercial cookery, that he had only re-enrolled in a course after he received Notice of Intention to Consider Cancellation of his visa and because he re-enrolled in a course, a Diploma of Management, after already having completed a Diploma of Management, that the applicant, by his actions, displayed no real pattern or purpose, that there did not appear to be any design to his studies in Australia and that this may indicate that he was simply enrolling in courses in order to prevent his visa being cancelled and that he had no real desire to successfully study in Australia and may not, in fact, be a genuine student.

42. The applicant told the Tribunal that he had made many mistakes in the past, that he had changed courses, changed his interests, that at various points he had been misled or misguided by migration agents in relation to the courses that he should be studying in Australia. 

43. The applicant reiterated his firm desire to be able to undertake a Master of Business Administration in Australia, before returning to India.

44. The Tribunal finds that the applicant does not have the will or desire to successfully undertake studies in Australia.  The Tribunal considers that this is evidenced by the applicant’s withdrawal from his master’s course at James Cook University, by his enrolling in various apparently unrelated courses, including management, leadership and management, commercial cookery and by several periods of time in which the applicant has failed to be enrolled altogether in a registered course in Australia.

45. The Tribunal also considers that this finding is supported by the fact that the applicant did not enrol in a course from January 2017 until September 2017, after he received the Notice of Intention to Consider Cancellation from the Department.

46. The Tribunal also finds that this finding is supported by the fact that the applicant has not sought to study or to obtain study rights in order to continue with his education in Australia.

47. The Tribunal also remains concerned as to whether the applicant is or has ever been a genuine student in Australia.  These concerns remain with the Tribunal, because of the somewhat erratic and unpatterned way in which he has applied for courses and the different types of courses for which he has applied in Australia.

48. The applicant came here as a graduate, from a recognised university in India, the holder of a bachelor’s degree in Computer Science and Engineering and he applied to come to Australia on the basis that he was going to study a master’s degree at a recognised Australian university. 

49. The Tribunal accepts that the applicant was injured, and that may have prevented him from successfully undertaking studies in the first semester at James Cook University where he was enrolled.  However, after this time, while the applicant, on his evidence, could have continued with his studies, decided not to and decided to undertake courses which were not approved for a holder of a 573 visa, vocational courses, such as a Diploma of Management, an Advanced Diploma of Leadership and Management and then, after he was issued a new visa, he began a course in commercial cookery.  He was not enrolled in any courses between January 2017 and September 2017 and only re-enrolled in another Diploma of Management, after he was advised of the Department’s intention to consider cancellation of his visa.

50. The Tribunal, while still concerned that the applicant has never been a genuine student in Australia, is not willing to make a finding that he was not a genuine student. at

51. The Tribunal accepts that the applicant and his family members may suffer some disappointment and be upset that the applicant’s visa was cancelled before he was able to successfully complete a master’s course in Australia, but the Tribunal notes that the applicant’s choices about his courses are his own.  He decided to be enrolled and to undertake a Diploma of Management and on his evidence, he has attained that qualification.  The applicant had the opportunity to study a master’s course in the past and decided to undertake other vocational courses instead.

52. The Tribunal has considered that if the applicant’s visa remains cancelled, he will be prevented, in all likelihood, from applying for another visa in Australia for some three years.

53. The Tribunal has noted that the applicant, while he has conceded that he could study in India or in a third country other than India or Australia, has expressed a strong preference to be able to continue to study in Australia and as mentioned previously, the Tribunal accepts that the applicant will suffer some disappointment if he is unable to remain in Australia to complete a master’s degree.  However, the Tribunal considers that the applicant’s apparent lack of will and desire to successfully undertake an education course in Australia, which has been demonstrated by his actions in Australia to date, strongly outweighs any hardship that he or his family may suffer if his visa remains cancelled.

    DECISION

54. The Tribunal affirms the decision to cancel the applicant’s class TU visa.

    Tigiilagi Eteuati
    Member