Chalamcharla (Migration)

Chalamcharla (Migration) [2020] AATA 1804 (8 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harish Reddy Chalamcharla
CASE NUMBER:  1933022
HOME AFFAIRS REFERENCE(S):          BCC2019/3284511
MEMBER:Amanda Pearson
DATE:8 March 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 08 March 2020 at 11:33pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered higher level course ceased – non-commencement of studies – family medical issues – limited academic progress – applicant changed to vocational course – financial hardship – 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

This is an application for review of a decision dated 14 November 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).
The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course since 16 August 2019 and as such breached condition 8202(2)(a). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 21 January 2020 to give evidence and present arguments.
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
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?
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 full time registered course: 8202(2)(a)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
On 21 January 2020, the applicant provided to the Tribunal a copy of a medical certificate dated 20 January 2020 for Mr Bhanker Reddy Chalamchlara, the applicant’s father.
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
The applicant was granted a student visa on 15 March 2018 for the purpose of study in a Master of Business (Enterprise Resource Planning Systems). The applicant changed his study course shortly after commencing his Master course and enrolled in a Diploma of Leadership and Management. The applicant’s enrolment was cancelled on 16 August 2019 and the applicant has not been enrolled in a registered course since that date.
Accordingly, the applicant has not complied with condition 8202(2)(a).
Consideration of the discretion to cancel the visa
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 Procedural Instruction ‘General visa cancellation powers’.
Background evidence taken at the hearing
The applicant arrived in Australia on 24 March 2018. He was born in India on 4 March 1995 and is 25 years old. He is single and does not have any children.
In relation to his family background, the applicant informed the Tribunal that his parents both live in India. The applicant’s mother is a homemaker and his father owns a construction business. He has an elder sister who also lives in India.
Prior to arriving in Australia, the applicant completed a Bachelor of Engineering in 2016 in his home country.
The Tribunal had a discussion with the applicant regarding his study history here in Australia. The applicant explained to the Tribunal that he came to Australia in March 2018 to study a Master of Business (Enterprise Resource Planning Systems) degree at the Victoria University in Sydney. The applicant told the Tribunal that he found this course difficult because he could not grasp the terminology due to a language barrier. After attempting one semester of his Masters of Business (Enterprise Resource Planning Systems), in July 2018 he ceased the Master course.
The applicant claimed that he then changed study pathways and commenced studying in March 2019 a Diploma of Leadership and Management at Hibernia Institute in Sydney. He elected to study at a diploma level because he thought it would be easier for him to understand and grasp the key concepts of the course. However, he told the Tribunal that this was not the case as he also found it difficult to grasp the course content of the Diploma of Leadership and Management course.
Nevertheless, he only completed two months of his Semester One Diploma studies. The applicant told the Tribunal that he did not complete his Diploma of Leadership and Management because he had to return to India to visit his father in May 2019 because his father had fractured his left leg. The applicant stayed in India to look after his family for 45 days whilst his father was in hospital recovering from his injuries.
The medical certificate provided by the applicant to the Tribunal supported the applicant’s assertion that the applicant’s father had suffered fractured bones in his left leg and underwent treatment for his injuries between May and June 2019.
The applicant told the Tribunal that due to his father’s injuries, his father was unable to work and pay for the applicant’s Semester Two course fees.
The applicant also told the Tribunal that he completed no subjects in his Diploma of Leadership and Management and therefore, no subjects whilst studying in Australia.

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
The applicant explained in the hearing that he wanted to have a good education which would set him up financially in India. He told the Tribunal that he wished to make his family, especially his father proud as it was his father’s dream for him to complete a Master course so that he could take over his father’s construction business. He told the Tribunal that if his visa was cancelled, that it would be very difficult for him because it would hurt his parents if he returned to India with no further qualifications, especially a Master qualification.
The Tribunal gives some weight to the applicant’s stress and pressure he may feel if he has to return to India. The Tribunal appreciates the significance of obtaining a student visa for the applicant and his family, but it does not operate to ameliorate the applicant for a lack of completing any courses in Australia as well as prioritising his Masters studies and focusing on completing the same in Australia.

The extent of compliance with visa conditions
The applicant has stated that he has complied with all other conditions on his visa. There is nothing before the Tribunal to indicate that this is not the case.
The Tribunal gives this some weight in favour of the applicant against not cancelling the visa, however remains mindful that it is expected that all visa holders adhere to the conditions on their visa.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant explained that if his visa is cancelled, then it will cause him considerable disappointment because it was his father’s dream for him is complete a Masters qualification so that he can take over his father’s construction business. He stated that if his visa is cancelled and he cannot study, then this will disappoint his parents. He also stated to the Tribunal that his future will be ruined if he is not able to study in Australia as he will not have the appropriate qualifications to help manage and operate his father’s construction business.
He told the Tribunal that if his student visa is not cancelled then he plans to complete the Diploma of Leadership and Management course within the next two years. The applicant stated that he then anticipates being in a position to attempt the same Masters of Business course again; which he believes will take him a further two years to complete.
The Tribunal accepts that the cancellation of a visa is disappointing. It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.
The Tribunal also accepts that a cancellation may contribute to the emotional pressure and stress that the applicant may already be facing. However, the Tribunal is also mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition of non-enrolment. Whilst appreciating the hardship the applicant and his Indian family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

Circumstances in which the ground of cancellation arose
The applicant told the Tribunal that his father had suffered a fractured left leg in May 2019. Consequently, he was unable to complete his Diploma of Leadership and Management course because he had to return to India to visit his father in hospital because he was expected to look after the daily affairs of his family as his sister was married and had her own family to look after. He also told the Tribunal that his father was in hospital for a month and was unable to work in his construction business.
The applicant told the Tribunal that due to his father’s injuries, his father was unable to pay for the applicant’s Semester Two course fees. He also told the Tribunal that he never told the Hibernia Institute about his father’s medical condition as he was too stressed and preoccupied when he left Australia in May 2019 to visit his father in India.
The Tribunal accepts that the applicant’s father was injured and unable to work for at least a month in his construction business.
Individually and cumulatively the issues put forward by the applicant pertaining to the circumstances in which the breach occurred are given some weight but not sufficient weight to outweigh the reasons for cancelling the visa because of the seriousness of the breach.

Past and present behaviour of the visa holder towards the department
There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

Whether there would be consequential cancellations under s.140
This is not relevant to applicant.

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.
In the event the visa is cancelled, the applicant would need to obtain a bridging visa to ensure he is lawful until he makes arrangements for his departure. The applicant could avail himself of migration advice pertaining to his status.

Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the visa holder’s visa would breach any international obligations. The Tribunal places no weight on this in favour of the applicant.

Any other relevant matters.
The Tribunal is not aware of any other relevant matters and is therefore unable to give any weight for or against cancelling the visa for this consideration.
Considering the circumstances as a whole, the Tribunal concludes that the applicant’s student visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Amanda Pearson
Member
ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)      a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)      must be enrolled in a full time registered course; and
(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2020] AATA 1804

8 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction