CHILUKURI (Migration)

[2019] AATA 1007

CHILUKURI (Migration) [2019] AATA 1007 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ROHIT CHILUKURI

CASE NUMBER:  1701082

HOME AFFAIRS REFERENCE(S):           BCC2016/4281664

MEMBER:Wendy Banfield

DATE:25 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 March 2019 at 7:28pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – difficulty with the MBA course – no compelling need to remain in Australia – length of non-enrolment – 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

1. This is an application for review of a decision dated 18 January 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 was not enrolled in a course of study from 16 September 2016 to 18 January 2017 and was therefore in breach of the conditions attached to 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.

   Background

3. The applicant is a citizen of India and is currently 28 years old. The applicant came to Australia to study an MBA having completed a degree in his home country. He began with an English program but was unable to cope with the MBA course. The applicant then enrolled in a Diploma course leading to a Bachelor degree to be followed by an MBA.  After completing his Diploma the applicant did not enrol claiming he had been waiting for the February intake when his visa was cancelled. He said he was then unable to obtain a COE for three years.

4. The applicant appeared before the Tribunal on 12 February 2019 to give evidence and present arguments.

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 the applicant was not enrolled in a registered course.

9. The applicant did not dispute that he was not enrolled to study from 16 September 2016 until his visa was cancelled on 18 January 2017. 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

10. 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

11. The applicant came to Australia as the holder of a Subclass 573 Student Visa. The purpose of the applicant’s travel to Australia was to study an MBA. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

12. During the Tribunal hearing the applicant was invited to make submissions regarding his any compelling need to remain in Australia. The applicant said he needs to finish his MBA but has been unable to do so because his visa was cancelled. The applicant advised he would like to continue to study at a university in Adelaide. According to the applicant he has been working in a petrol station in accordance with the conditions of his Bridging Visa. The Tribunal is not satisfied the applicant has demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

13. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

    ·     degree of hardship that may be caused (financial, psychological, emotional or other hardship)

14. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant claimed he would suffer hardship because he would be unable to achieve his goals and he has been unable to enrol anywhere as he holds a Bridging E Visa. The Tribunal places no weight on these reasons in favour of the applicant.

15. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

16. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies. The applicant advised he had difficulty with the MBA due to the nature of the education system in Australia. As a result he took a Diploma course instead and was late enrolling in further study in late 2016. He said he was waiting for the February 2017 intake for his next course of study but in the meantime, his visa was cancelled.

17. The Tribunal notes the applicant did not respond to the Department’s Notice of Intention to Consider Cancellation (NOICC) dated 10 January 2017 despite being advised the Department needed to communicate with him regarding his current visa and confirming his email address. If the applicant had applied for further study in to begin in February 2017, it was open to him to advise the Department of his situation prior to cancellation. The applicant claimed he had only become aware of the Department’s letter shortly before he needed to respond, however, his email confirming his email address was dated 9 January 2017 and the Department sent the NOICC the next day, on 10 January 2017.

18. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or explain his circumstances during the period when he was not enrolled, in breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

19. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

20. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

21. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

    ·     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

22. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. There is no evidence before the Tribunal that the applicant currently has children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

23. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

24. The applicant advised he is expecting a child with his partner. However, no independent evidence was provided in support of this claim and the Tribunal is unable to place weight on this aspect of his evidence. In addition, the applicant claimed he was still planning to return to India after his studies and has not applied for a Partner Visa.

    Conclusion

25. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

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

    DECISION

27. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Wendy Banfield
    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.