Gaddam (Migration)

[2022] AATA 233

Gaddam (Migration) [2022] AATA 233 (4 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suprider Reddy Gaddam

REPRESENTATIVE:  Mr Jayapal Reddy Vadlakonda (MARN: 0957482)

CASE NUMBER:  2002860

HOME AFFAIRS REFERENCE(S):          BCC2017/3976248

MEMBER:Joseph Lindsay

DATE:4 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 4 February 2022 at 11:57am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – Federal Circuit Court remittal – enrolment in a higher level course – applicant failed initial subjects – applicant changed to a Graduate Diploma course – plans to return to Masters level – last chance to complete Masters degree – decision under review set aside     

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 July 2018 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 (Cth) (the Act).

2. The applicant attended an audio hearing with the Tribunal on 3 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.

3. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 (Cth) (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?

6. 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)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant did not 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.

8. The Australian Qualifications Framework (AQF) is the policy for regulated qualifications in the Australian education and training system. It is monitored and maintained by the Commonwealth Department of Education and Training, in consultation with the states and territories. It is made up of 10 levels as follows: 1 – Certificate I; 2 – Certificate II; 3 – Certificate III; 4 – Certificate IV; 5 – Diploma; 6 – Advanced Diploma, Associate Degree; 7 – Bachelor Degree; 8 – Bachelor Honours Degree, Graduate Certificate, Graduate Diploma; 9 – Masters Degree; 10 – Doctoral Degree.

9. In the hearing, the applicant indicated that he did not dispute that there were grounds for cancellation of the visa. The applicant made admissions that he was initially granted a student visa to study at AQF level 9 in a Master of Information Technology. The applicant admitted that he did not remain enrolled in a Master of Information Technology and that he enrolled in a Graduate Diploma of Management course, which is a lower AQF level course at AQF level 8. The Tribunal put to the applicant that, based on these admitted facts, it appeared that the applicant had not maintained compliance with condition 8202(2)(b) of his visa, and therefore there were grounds for cancellation under s.116(1)(b) of the Act. Again, the applicant admitted he did not dispute that there were grounds for cancellation of his student visa.

10. On the evidence before the Tribunal, the applicant’s visa was granted in relation to a Master of Information Technology course which would have provided a qualification at AQF Level 9. Since then, the applicant has enrolled in Graduate Diploma of Management course, which is a lower AQF level course at AQF level 8. Accordingly, the Tribunal finds that the applicant has not maintained 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. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2)(b) and there are grounds for cancellation under s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

11. 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’.

    The circumstances in which the ground for cancellation arose

12. In the hearing, the Tribunal discussed the applicant’s circumstances. The applicant indicated that he applied for the Master of Information Technology course because he thought the course would help him for his future. However, he said he simply found that he could not cope with the requirements of the course and that he failed his subjects. He said he decided to pursue a different path, and he tried to change courses, and start a Masters of Business Administration (AQF level 9) but he was not accepted into this course.  He said he tried to enrol in a Masters of Business Administration at a different university, but was unsuccessful, primarily because he had not successfully completed at least six months of his Masters course. He said he contacted Holmes Institute who advised him he could enrol in the Graduate Diploma course which would ultimately help him become enrolled in the Masters course. He said he did not obtain correct advice about this course of action, and that he received advice from friends who told him that this was a viable course of action for him. He said he was under a misconception that he was doing the right thing, but that when he tried to enrol in the Masters course he found he could not do so because he had not successfully completed at least six months of his Masters course. He indicated that he was under the impression that he was acting in compliance with his visa conditions. He indicated that not long before he was able to complete the Graduate Diploma he got the Notice of Intention to Cancel his visa which, for the first time, made him aware that he had not been acting in compliance with his visa conditions. He said he went to a migration agent, who confirmed that he had not been acting in compliance with his visa conditions.

13. The applicant’s representative then confirmed that because the applicant did not pass at least 50 percent of his subjects in that first semester of his Master of Information Technology course, he was not able to obtain enrolment in another Masters course.  The applicant’s representative indicated that the applicant’s intention was never to subvert or get around the visa requirements. The applicant’s representative indicated that the applicant never took the step of enrolling in lower level courses simply to maintain his visa enrolment. The applicant’s representative indicated that the applicant’s intention always was, and remains, to take necessary steps to complete a Masters course.

14. The Tribunal spoke to the applicant about his previous academic record and noted that the applicant has previously performed well academically, and that while it appeared initially that he would be in a position of strength to complete the Master of Information Technology it was clear that he had encountered major difficulties in adjusting to the demands of a much harder course. The applicant became distressed when speaking about his circumstances. He indicated that his circumstances were very disappointing to himself, given the amount of time that had passed and money that had been spent. The applicant maintained that he completed the Graduate Diploma and he had initially planned to complete the Master of Business Administration course within one year. The applicant maintained that if he had been allowed to continue on with his studies, he would have finished the Masters course by now and would have been back in his home country. The applicant indicated that he still wanted to finish his studies and return to his home country, and that he had no intent to stay in Australia any longer than was required to finish his studies. The applicant made clear that he did not want to stay permanently in Australia. He indicated that his family in India knew about his circumstances. He maintained that his parents had continued to financially support him.

15. The Tribunal discussed the written submissions with the applicant. The written submissions were consistent with the account that the applicant had spoken about with the Tribunal. The applicant said he will be able to pass the subjects in the Master of Business Administration because he has investigated the requirements of the course.

16. In respect of the above, the Tribunal makes the following findings.

17. The Tribunal accepts that the applicant has given truthful evidence to the Tribunal about his circumstances. The Tribunal accepts that the applicant has found himself in unfortunate circumstances. The Tribunal is satisfied that the applicant has not engaged in disingenuous conduct, and that he has a genuine desire to complete his Masters course and return to India as soon as possible. The Tribunal is satisfied that the applicant has demonstrated bona fide efforts to work towards undertaking his Masters course where he has successfully completed the Graduate Diploma. Accordingly, the Tribunal places high weight on this information in the applicant’s favour.

    The purpose of the visa holder’s travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

18. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was initially to study, but the Tribunal is satisfied that the applicant has a compelling need to remain in Australia at this time. Accordingly, the Tribunal gives some weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

19. The Tribunal accepts that the applicant appears to have complied with his other visa conditions. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

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

20. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled.

21. In response, the applicant indicated that he would be disappointed, and his family would be disappointed.

22. The Tribunal accepts that there may be some disappointment caused to the applicant, and his family, if his visa was cancelled and gives this matter some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

23. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140 of the Act

24. The applicant does not have any dependants on his student visa who would be affected if his student visa was cancelled. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

25. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

26. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to India.

27. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

28. The Tribunal places some weight on this information in the applicant’s favour.

    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

29. The Tribunal asked the applicant if he feared anything in returning to India. In response he indicated that he had no fears if he went back to India. Accordingly, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

30. In respect to whether there were any other relevant matters he wished to discuss, the applicant indicated that there were no other matters he wished to discuss.

    Conclusion

31. In balancing the circumstances above, the Tribunal concludes that the applicant should be granted a last chance to complete his Masters degree.

    DECISION

32. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Joseph Lindsay

    
    

    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.