Gurram (Migration) - [2024] ARTA 575

Gurram (Migration) [2024] ARTA 575 (5 November 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Akhil Reddy Gurram
Respondent:  Minister for Home Affairs
Tribunal Number:  2315879
Tribunal:General Member C Kannis
Place:Perth
Date:5 November 2024
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 05 November 2024 at 7:35am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in full-time registered course – discretion to cancel visa – COVID pandemic and changes of subject area – disagreements with colleges about course delivery and fees – enrolments cancelled and no courses completed – physical health and surgery, and mental health – uncle’s death and parents’ financial position – continuing part-time employment – new enrolments made before department’s notice of intention received – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), (1A), 359A
Migration Regulations 1994 (Cth), r 2.43A(2)(d), Schedule 2, cl 8202(2)(a)
CASES
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50
Bandara (Migration) [2020] AATA 2889
Candra (Migration) [2022] AATA 2996
Maharjan (Migration) [2020] AATA 3879
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 28 September 2023 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).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams on 28 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.
The applicant was represented in relation to the review. The representative did not attend the hearing.
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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and reg 2.43A, and other matters of government policy.
Did the applicant comply with Condition 8202?
On 5 January 2022, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
Condition 8202, as it applies in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gurram (Migration)

Details

AGLC: Gurram (Migration) [2024] ARTA 575
Case: [2024] ARTA 575
Decision Date: 5 November 2024

CaseChat Overview and Summary

In the matter of Gurram, the applicant, who holds a Subclass 500 (Student) visa, sought to have the decision to cancel his visa overturned. The Department of Home Affairs had decided to cancel the visa on the basis that the applicant had not complied with a condition of the visa by not being enrolled in a full-time registered course. The applicant's visa was subject to the condition that he must be enrolled in a full-time registered course, and he had not maintained this enrolment from 7 March 2023 until 14 July 2023. This non-compliance was the basis for the Department's Notice of Intention to Consider Cancellation (NOICC) issued on 28 July 2023, leading to the cancellation decision.

The primary legal issue before the Tribunal was whether the visa cancellation decision was justified. The Tribunal had to consider whether the applicant had breached the conditions of the visa and, if so, whether the power to cancel the visa should be exercised. In exercising this discretion, the Tribunal took into account the prescribed matters outlined in section 116(1A) of the Act and regulation 2.43A of the Regulations, as well as the circumstances of the case. The Tribunal also considered the applicant's response to the NOICC, which outlined various difficulties he faced, including health issues, disagreements with educational institutions, and the impact of the COVID pandemic on his studies.

After considering the evidence and submissions, the Tribunal concluded that the ground for cancellation did exist as the applicant had not complied with the condition of being enrolled in a full-time registered course. The Tribunal also determined that the discretionary power to cancel the visa should be exercised. Despite the applicant's efforts to comply with his visa conditions, the Tribunal found that the non-compliance was significant and could not be overlooked. The Tribunal took into account the applicant's health issues, financial situation, and the impact of the cancellation on his future prospects but ultimately concluded that the public interest in enforcing visa conditions outweighed these factors.

The Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa. The applicant has the right to seek review of this decision by the Administrative Appeals Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.Date of hearing: 28 October 2024Representative for the Applicant: Mr Jayapal Reddy Vadlakonda (MARN: 0957482)ATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

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 Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the power to cancel the visa should be exercised. For temporary visas other than criminal justice and enforcement visas, there are prescribed matters to which the decision-maker must have regard in determining whether they are satisfied as mentioned in s 116(1)(b): s 116(1A) and reg 2.43A of the Regulations. The Tribunal has also had regard to the circumstances of this case, including matters raised by the applicant, his representative and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. Utilising the s 359A of the Act procedure, the Tribunal put the following information to the applicant for his comment:On 12 July 2023, the Department of Home Affairs Character and Cancellation Branch sent the applicant an email regarding verification of his contact details and he responded on 13 July 2023. In response the applicant said he agreed with information. On 28 July 2023, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 7 March 2023 until 14 July 2023 and had therefore failed to comply with condition 8202(2)(a) of his visa. Response to NOICC On 3 August 2023, the applicant responded to the NOICC via his migration agent and provided the following information: During his stay in Australia he has made every effort to abide by his visa conditions. He attended all classes and maintained satisfactory academic results until the circumstances which led to the cancellation. He was granted a Student visa to study a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery at the National Training Centre of Australia (NTCA) and a Diploma of Business at Eagle Academy. The colleges are sister colleges and he encountered significant difficulties primarily related to the colleges’ inadequate maintenance of staff and failure to deliver the promised education despite charging substantial fees. These frustrations led him to seek a refund of his fees but NTCA claimed they could report him to Home Affairs and potentially cancel his visa. In April 2022, he decided to leave NTCA due to his dissatisfaction and decided to pursue a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality at Ashton College. He received CoEs for these courses on 19 April 2022. The agreement was for NTCA and Eagle Academy to transfer the fees he had paid to those providers to Ashton College but the transfer did not happen. Ashton College demanded he pay the full fee again resulting in attendance issues and further threats and on 15 July 2022 they cancelled his CoEs. Subsequently NTCA allowed him to continue his studies and recognise his previous studies. However, due to unforeseen issues “NTCA is asking the fee again from me and start giving hustle again”. On 3 August 2022, NTCA cancelled his CoE. Since then he has engaged in discussions with NTCA regarding fees and transcripts disputes. Feeling dissatisfied with the educational institutions he escalated his complaints to higher authorities. In March 2023, Eagle Academy closed and his Diploma of Business CoE was cancelled. In February 2022, he underwent surgery for testicular torsion. It was a distressing time for him and his family. Since August 2022 he has faced unexpected health issues related to his previous surgery. He has had online consultations and received prescriptions from doctors in India due to the cost of medical services in Australia. His health and enrolment issues with NTCA and Eagle Academy caused him anxiety and he became depressed. His parents advised him to return to India. His health has now improved and he is now in a stable condition. He approached a new agent for new enrolment however before taking the CoE from Newton College he received the NOICC. These events were coincidental and not intentionally orchestrated. He has enrolled in a Certificate III in Commercial Cookery, a Certificate IV in Kitchen Management and a Diploma of Hospitality Management at Newton College. Cancellation of his visa would have significant adverse effects on his life, emotionally, financially and academically. His studies would be terminated and hinder his personal and professional growth and would also waste the time, effort and financial resources invested in his education. Cancellation would cause his family emotional distress and he would lose valuable experience and skillset acquired through his course limiting his professional growth and future opportunities. His family have made financial sacrifices to ensure his education and cancellation would put a financial burden on them and their financial investment would be lost. He is committed to returning to his home country after he completes his studies. He has strong family ties at home and there is a wealth of career opportunities at home. After he completes his studies he aims to establish himself as an innovative chef.