Gurram (Migration)

[2019] AATA 4076

Gurram (Migration) [2019] AATA 4076 (6 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kranthi Kiran Reddy Gurram

CASE NUMBER:  1906817

HOME AFFAIRS REFERENCE(S):           BCC2018/5379139

MEMBER:Vanessa Plain

DATE:6 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 06 August 2019 at 6:51pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of remaining in Australia – mother’s illness – non-payment of fees – 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 15 March 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 delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study. 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 5 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sindhuja Reddy Etikyala, the applicant’s wife.  The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages, although the applicant demonstrated a sound understanding of the English language and only required the assistance of the interpreter from time to time.   

4. 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

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 (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 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).

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

8. An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 23 March 2017 for the purpose of undertaking an approved Higher Education level course of study, including:

   ·English for Academic Purposes

   ·A Master Information Technology Systems

9. The applicant gave evidence that he did not complete the Master of Information Technology.  He said further that he commenced his studies in July 2017 and successfully completed one of three subjects during the semester, which concluded in late October 2017.    

10. The applicant’s enrolment at Charles Sturt University was purportedly cancelled on 30 May 2018. 

11. A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 13 February 2019.

12. At the hearing, the applicant candidly made the following admissions:

    ·His enrolment was cancelled due to non payment of course fees;

    ·He was not enrolled in a registered course from 30 May 2018 onwards;

    ·He is not enrolled in a registered course presently;

    ·He received the NOICC; and

    ·He responded via email to the NOICC on 15 February 2019 and 16 February 2019 respectively, in which he sought to explain the reasons for his non enrolment. 

13. The applicant gave reasons in his evidence, as the circumstances that led to the cessation of his studies, which are set out in detail below.    

14. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant was not enrolled in a registered course as at 30 May 2018.  Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

15. 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.

16. 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’

    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 

17. The applicant gave evidence, supported by a certificate of marriage, that in February 2019, the applicant and his wife were married in Australia.  The applicant stated further that he made an application for another student visa in February 2019, for the purpose of remaining onshore to support his wife who is currently studying in Australia.  The applicant’s wife has approximately one year remaining before she completes her studies.  The Tribunal explained to the applicant the his application for a student visa to support his wife, rather than undertake studies himself, tended to suggest that his main reason for being in Australia was primarily for a reason other than to study.  The applicant did not disagree that he wanted to remain in Australia to support his wife, the applicant however stated further that he did wish to re-enrol in his IT course and complete his studies. 

18. The applicant lives with his wife in Melbourne, he has no other family in Australia.  The applicant gave evidence that he is not working at the moment. 

19. The applicant’s father is deceased, having passed away in 2009.  The applicant produced the death certificate to the Tribunal.  The applicant’s mother lives in India, with whom the applicant remains close.  It was the applicant’s mother who was paying for his tuition at Charles Sturt University.    

20. On the basis of the above and particularly with reference to the applicant’s secondary visa application in February 2019, I find that the applicant has a compelling need to remain in Australia and that he has demonstrated his primary purpose as being in Australia to remain with his wife, rather than to study.  I give these factors significant weight towards the visa being cancelled.     

    The extent of compliance with visa conditions

21. The applicant has not complied with condition 8202(2).  The applicant has provided reasons for the breach which are set out below, namely, that due to his mother’s illness, he was unable to pay for his course tuition fees.  

22. However, the Tribunal has some concern that the applicant has not attempted to remedy the breach by re-enrolling in a registered course, nor did he take steps to formally appeal his enrolment cancellation.  In fairness to the applicant, he advised the university that he would have difficulty in meeting fee payments in March 2019, and when he could not meet fee payments due, the university cancelled his enrolment in May 2019.  The applicant further stated that the non payment of fees was due to his mother’s illness and he was reliant on her to pay her fees at that time.   

23. The Tribunal also has serious concerns about the lapse of time between the period of cancellation of enrolment and today’s hearing date, which is well over 12 months in duration.  The Tribunal is also concerned that the applicant informed the department he had sufficient funds to pay for his tuition when he initially applied for his student visa. 

24. On the basis of the above, the Tribunal is not satisfied that the reason for the breach was a matter not reasonably within the control of the applicant and I give this some weight in favour of the visa being cancelled.

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

26. The applicant gave evidence of emotional and psychological hardship that he would endure if he had to return home in circumstances where he couldn’t complete his studies and in circumstances where he might be separated physically from his wife, who is currently studying onshore

27. The Tribunal has also had regard to two written statements provided by the applicant’s wife as to, among others, the status of her studies and the cultural stigma in Hindu culture which is attached to couples of that faith who are married and not physically together.  

28. The Tribunal heard further evidence from the applicant that he would face hardship in his career prospects returning home without a qualification and further, that he would face great difficulty being separated from his wife.  The applicant’s wife gave evidence that she would be unlikely to complete the last year of her studies if the applicant cannot remain onshore, because as his wife, in her faith, she must be with her husband. 

29. On the basis of the above, the Tribunal accepts that the cancellation has led to some personal detriment for the applicant which would be compounded by the continuation of the cancellation and the Tribunal therefore gives this some weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

30. The circumstances that led to the cancellation of the applicant’s visa are due to his mother becoming seriously ill in or around August 2018. 

31. The applicant produced a significant volume of medical evidence, including hospital admissions records, prescription drug receipts and general medical papers speaking to his mother’s serious health concerns.  The reason the applicant has produced these medical documents is for the purpose of demonstrating to the Tribunal that the non payment of his tuition fees was the reason for the cancellation of his enrolment at the university and his mother was paying for his tuition, before she became ill and could no longer do so. 

32. The Tribunal has had regard to the medical documents which at their earliest, indicate ill health on the part of the applicant’s mother from  August 2018 onwards.  There is no evidence of the applicant’s mother being in ill health in May 2018, when the enrolment was cancelled.  The Tribunal also has regard to the fact that the applicant acknowledged to the Department in his visa application, that he had sufficient funds to pay for his tuition.  Based on the applicant’s evidence at the hearing, that acknowledgment to the Department was not correct. 

33. On the basis of the above, the non payment of tuition fees is a matter that was reasonably within the control of the applicant, notwithstanding that the Tribunal accepts the non payment of fees was made all the more difficult by the applicant’s mother’s illness.  On balance, the Tribunal finds that the reason for the breach was reasonably within the control of the applicant and I therefore give this some weight towards the visa being cancelled. 

    Past and present behaviour of the visa holder towards the Department

34. The applicant has conducted himself in good faith in his dealings with the Department.  This is demonstrated by the fact that he responded immediately and frankly to the NOICC and gave evidence at the hearing, consistent with his response to the Department and with contemporaneous medical evidence.  I give this some weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

35. The applicant gave evidence that there are no consequential cancellations as a result of his visa being cancelled.  I therefore give this no weight in favour of the visa not being cancelled. 

    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. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and most importantly to the applicant, he would be separated from his wife potentially and would not be able to complete any study before returning home to India.  Given the circumstances set out above, I give this a little weight in favour of the visa not being 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

37. Not applicable.

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

38. Not applicable.

    Any other relevant matters

39. The Tribunal refers to the matters set out in the applicant’s wife’s written statements and the matters described paragraphs 27 – 29 inclusive.  These matters were essentially restated by the applicant’s wife as ‘other matters’ which she wished the Tribunal to have regard to in support of her husband’s application. 

40. On the basis of the above, the Tribunal accepts that some detriment would be suffered by the applicant if the visa remains cancelled and I give this some weight towards the visa not being cancelled. 

41. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the evidence that his primary purpose for remaining in Australia is not for the purpose of study, demonstrated by his application for a secondary visa and his evidence at the hearing.

42. It is also clear that the considerations I have arrived at, on examining all the evidence before me, lean towards the visa being cancelled and I so find.

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

    DECISION

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

    Vanessa Plain
    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.