Chitturi (Migration)

[2019] AATA 4107

Chitturi (Migration) [2019] AATA 4107 (3 September 2019)

DECISION RECORD

DIVISION:        Migration & Refugee Division

APPLICANT:     Mr Pradeep Chitturi

CASE NUMBER:         1910998

HOME AFFAIRS REFERENCE(S):     BCC2019/302518

MEMBER:        Mark Bishop

DATE:    3 September 2019

PLACE OF DECISION:           Melbourne

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

Statement made on 03 September 2019 at 1:32pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant period 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 29 April 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).

2.        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 3 September 2019. 

4.        On 30 April 2019 the Tribunal wrote to the applicant and requested he provide a copy of the decision record provided to the Department of Home Affairs on 23 April 2019.  The applicant did not provide a copy of the decision record to the Tribunal. The Tribunal provided a copy of the decision record to the applicant by way of s.359AA of the Act. See hereunder at paragraphs 11 to 16.

5.        The applicant provided a Genuine Temporary Entrant Statement to the Tribunal. Such statements are relevant in student refusal review applications. The Tribunal has reviewed this submission. It contained some information that was relevant to this student cancellation review. The Tribunal has summarised this information below. In the hearing the Tribunal summarised the content of the GTE Statement and asked the applicant if he had any further comment to make. The applicant advised he did not.

6.        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

7. 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?

8.        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).

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

10.       The applicant was notified of the intention to consider cancellation (NOICC) and the notice invited the applicant to respond in writing. The applicant did respond. The applicant responded on 15 April 2019 and advised there he agreed there were reasons for cancellation. He also provided reasons why the visa should not be cancelled. The applicant advised the Tribunal the findings of the delegate were correct.

ADVERSE INFORMATION

11.       Adopting the procedure in section 359AA of the Act, the Tribunal provided adverse information in the form of the decision record to the applicant. The Tribunal explained the decision of the delegate as to non-enrolment in a registered course from 30 April 2018 until date of decision (29 April 2019) was derived from the PRISMS record of the applicant. The Tribunal explained the meaning of PRISMS record.

12.       The Tribunal outlined particulars of the information, explained its relevance, advised the information would be a reason, or part of a reason for the Presiding Member to affirm the decision of the Department in his case and refuse the application for a visa and inquired if the applicant sought additional time to consider the information prior to responding.

13.       The applicant advised he did not seek additional time.

14.       The adverse information was as follows:

        Grounds of cancellation  in part C of the decision record;

        Decision whether to cancel in part D of the decision record;

        All of the discretionary factors considered by the delegate in part D of the decision record;

        Decision of the delegate at part E of the decision record.

15.       The Tribunal asked the applicant to address the adverse information as outlined in paragraph 14 above. The applicant advised as follows:

        In respect of dot point 1, 2, 3 and 4 the applicant advised he did not wish to make any comment.

16.       The delegate made a finding that according to PRISMS the applicant had not been enrolled in a full time registered course of study from 30 April 2018 (Tf: 3 and Df: 2).

17.       Having regard to the findings of the delegate as outlined in paragraph 16 above , the Tribunal finds that the applicant ceased to be enrolled in a registered course on 30 April 2018. The Tribunal finds that he breached condition 8202(2)(a) of his visa.

18.       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).

19. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

Consideration of the discretion to cancel the visa

20.       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’

21.       In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant provided a written submission to the Tribunal He advised the Tribunal “I accept that I have breached the visa condition and visa could be cancelled. However I want to request the Member to exercise [his] discretion to not cancel [the] visa”.

Consideration of discretion

22.       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

23.       The applicant provided a written submission that outlined the following:

        He came to Australia for the purpose of study. He commenced an MBA. He failed all units. He changed education providers. His enrolment in the MBA was cancelled by the education provider;

        His future plans are to seek employment in a “renowned multinational company”

        Because he lost his study rights he did not enrol in any further courses.

24.       The applicant advised the Tribunal his compelling need was to finish his studies in Australia. He thought the value gained in Australian education might assist to gain employment in his home town. In further responses to questions he advised he owned significant assets in his home town. These assets were agricultural land and multiple houses. He advised his father had similar agricultural holdings and would train him in agricultural techniques. He advised that he thought he could make a living from these assets. He advised he was not yet married and not ready to settle down. He would live with his parents and work with his father. He advised he was now enrolled in a Graduate Diploma of Business and though this study might assist in the management of his agricultural holdings in India. He did not provide any detail as to his core subjects or explain how this study might assist him to be a more successful farmer.

25.       In evidence he did not address the likelihood of employment as outlined in his written submission as summarised above.

26.       The Tribunal is satisfied the applicant will find the comfort of family and help and training in his home country to gain an income from assets he already has in his title.

The extent of compliance with visa conditions

27.       There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

28.       The applicant provided a written submission that outlined the following:

        He will suffer financial hardship directly and indirectly.

        Direct financial hardship will occur if the visa is cancelled as it will cause problems of stress to his family members. They have high hopes for him and have invested a large sum of money in him;

        He advises it will be hard to gain admission to a university in his home country because of his age;

        His parents have warned him they may not be willing to expend further sums on his education in the future if he returns to India without a qualification;

        He may face difficulties in gaining employment in India without a qualification;

        His ultimate career goal is to obtain a very senior position

29.       The applicant advised concerning financial hardship that his parents were reluctant to provide further funds to study in Australia. After further examination the applicant advised his parents would support him for further study in Australia. They would not support him if he was not engaged in study in Australia. If he returned to India they would not fund him for further study in his home country. The applicant advised he would have adequate income from assets he holds in India to provide an income. He advised he owned agricultural land and buildings that would provide an income.

30.       The applicant advised he would suffer psychological hardship in the form that his family and neighbours would ridicule him for not finishing his education. He felt this might lead to stress and other addictions. If he wishes to open a business without an education it will affect his business and harm his future business plans. He advised he wishes to focus on farming and copy Australian concepts including the sale of product.

31.       He advised emotional hardship would be felt by his parents.

32.       The Tribunal is prepared to accept there may be some embarrassment or discomfort associated with a return to India after 3.5 years without any academic progress in Australia. The Tribunal is prepared to accept there may well be family or community disapproval. The Tribunal accepts that the applicant might regret not taking full advantage of his parent’s generosity and consequent opportunity in Australia. However the personal and family discomfort or embarrassment is a necessary consequence of the applicant’s continuing failure to adhere to conditions attached to his visa and engage in study.  The Tribunal is unable to conclude there is any compelling need to remain in Australia. Returning home with the aid of family the applicant will have the opportunity to commit to work and develop a successful enterprise.

Circumstances in which ground of cancellation arose

33.       The delegate made a finding the applicant was not enrolled in a registered course of study from 30 April 2018. The applicant advised the Tribunal this finding was correct.  The applicant enrolled in a registered course of study after the issue of the NOICC. Obtaining further enrolment after being issued a NOICC does not negate the fact that the applicant did not comply with condition 8202(2).

34.       There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

Past and present behaviour of the visa holder towards the department

35.       There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach

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

36.       The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

Whether there would be consequential cancellations under s.140

37.       There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

Whether any international obligations would be breached as a result of the cancellation

38.       There is nothing before the Tribunal to indicate there are international obligations to consider.

39.       Any other relevant matters

40.       The Tribunal is not aware of any other relevant matters.

41.        The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-573 visa  and that a breach of almost twelve is significant in the context of a student’s study period

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

decision

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

Mark Bishop
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.