Gurrampati (Migration)

Gurrampati (Migration) [2019] AATA 4920 (6 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vijaya Bhaskar Reddy Gurrampati
CASE NUMBER:  1804535
HOME AFFAIRS REFERENCE(S):           BCC2017/3598627
MEMBER:Joseph Lindsay
DATE:6 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 6 November 2019 at 6:22pm

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 – circumstances giving rise to non-compliance – father’s health condition – financial problems – mental health issues – reasonable steps to maintain 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

This is an application for review of a decision dated 19 February 2018 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).
The applicant attended the hearing before the Tribunal via videoconference on 31 October 2019. The applicant was represented by a migration agent at the hearing.
In his application to the Tribunal, the applicant indicated he did not need an interpreter. In the hearing invitation dated 16 October 2019, it was clearly stated in bold type “Interpreter: Please advise us at least 7 days before the hearing if you require an interpreter.” Yet at no stage did the applicant or his representative request an interpreter. At the commencement of the hearing, the applicant requested an interpreter. However, in the course of discussion with the Tribunal, the applicant agreed that he did not need an interpreter but that if he did have any difficulty in communicating with the Tribunal he would immediately tell the Tribunal and the interpreter would be provided. He agreed that he had passed his English language requirements in order to obtain his student visa and he indicated he had now been in Australia for over three years. Accordingly, the applicant spoke to the Tribunal in English.
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 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
At the commencement of the hearing, the Tribunal asked the applicant if he had read and understood the information in the delegate’s decision record dated 19 February 2018, and he indicated that he did read the decision and he understood the decision.
Did the applicant comply with condition 8202?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The Tribunal put to the applicant that he had provided a copy of the delegate’s decision record to the Tribunal in his application, and the delegate’s decision noted:
On 17 March 2017 the visa holder's Education Provider, the University of Southern Queensland, notified the Department that the visa holder had ceased studies and was no longer enrolled. According to Provider Registration and International Student Management System (PRISMS) the visa holder’s is not currently enrolled in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course of study.
The Tribunal put to the applicant that whilst his response to the Department dated 8 December 2017 did not specifically address the issue as to whether or not he had remained enrolled in a registered course of study, the written submission from the applicant’s representative dated 28 October 2019 (submissions that the applicant claimed were true and correct) indicated that the applicant did admit he had not remained enrolled in a registered course of study where he decided to withdraw from his course of Master of Information Technology at University of Southern Queensland and he did not re-enrol in any course.
In response, the applicant indicated that he did not agree that there were grounds for cancellation of his student visa.
When asked whether he recalled why the Department cancelled his visa, he indicated that he did not have a valid Confirmation of Enrolment (COE) and that was why the delegate cancelled his visa.
The Tribunal discussed the requirement of condition 8202 that required the applicant to remain enrolled in a registered course of study and put to him that he not been enrolled in a registered course of study since 17 March 2017 – to which the applicant agreed this information was correct.
The applicant then claimed he had remained enrolled in a registered course of study, but then subsequently again indicated that he not been enrolled in a registered course of study since 17 March 2017.
On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 17 March 2017. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.
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 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 circumstances in which the ground for cancellation arose
The Tribunal referred the applicant to his response to the Department dated 8 December 2017 and the written submission from the applicant’s representative dated 28 October 2019, in which he indicated the circumstances in which the ground for cancellation arose concerned:
-The adverse impact caused to him due to his father’s health situation;
-This [coming to Australia in 2016] was the first time he was away from his family and so he became lonely and depressed;
-He moved from Brisbane to Sydney, and decided that he preferred to be in Sydney as he felt better being in Sydney because he had contact with his fellow Indians;
-He withdrew from the Master of Information Technology at University of Southern Queensland, but could not find the right advice about changing his enrolment to a new college or university;
-In late 2016 and early 2017, his father’s health became quite serious, where his father was ultimately admitted to hospital for some very critical medical procedures;
-He provided financial assistance to help his father in India to help fund his father’s medical assistance;
-His father’s health situation worsened and he provided further financial assistance to his father;
-He was aware that he was obliged to comply with his visa obligations and continue his studies, but rather than do this he chose to instead assist his father;
-As a result of his circumstances, he had been quite depressed.
-He already has a very good basic qualification and experience with top tier technology companies as a software engineer;
-He received poor advice from another agent, and so did not provide a proper response to the Department and only attached some medical certificates from his father;
-He has a very solid background with a Bachelor of Computing Technology and substantial experience as a software engineer with top tier technology firms like IBM and Accenture.
The Tribunal noted that the applicant’s representative had provided:
-A letter from Dr Sai Karthik Kommineni of Tamma Vinod Reddy’s Sruthi Hospitals dated 28/5/2019.
-Medical information in respect to the applicant’s father, Mr G. Penchal Reddy
The Tribunal discussed the letter from Dr Sai Karthik Kommineni of Tamma Vinod Reddy’s Sruthi Hospitals dated 28/5/2019 with the applicant, including that:
-Over the last 3 years Dr Sai Karthik Kommineni and the applicant have had 36 “telehealth” sessions;
-Dr Sai Karthik Kommineni has been the applicant’s medical doctor for several years;
-The applicant contacted Dr Sai Karthik Kommineni in October 2016 seeking help for severe mental health issues stemming from his father’s ill health and financial problems related to pursuing his dream of continuing higher studies;
-Over the course of the “telehealth” sessions, the applicant reported his struggle with acute and severe anxiety leading to depression and often reported episodes of physical signs of anxiety leading to panic attacks;
-Careful counselling and coping mechanisms by encouraging the applicant to engage in sporting activities has shown results in a positive direction;
-He is still fragile with his mental health;
-Dr Sai Karthik Kommineni believes that if the applicant pursues his further studies in Australia, this will enable to him to recover from his chronic mental health issues, in particular anxiety and depression.
In response the applicant agreed that all of the information he and his agent had provided to the Tribunal, as discussed with him in the hearing, was true and correct.
The Tribunal spoke with the applicant about when he realised he had financial problems, and he responded he was aware in January/February 2017 he had financial problems.
The applicant indicated that he thought he could not pay his course fees, but he did not approach his course provider (University of Southern Queensland) about his situation. When asked if there was a reason why he did not approach his course provider, he indicated he just wanted to move to Sydney.
The Tribunal asked the applicant whether he spoke to the Department about his circumstances, and he indicated he did not. When asked why not, he indicated he went through his agent.
The Tribunal put to the applicant that he, as the visa holder, was responsible for complying with the conditions of his visa, to which he agreed that he was responsible.
The Tribunal put to the applicant that he may not have taken reasonable steps to liaise with his course provider or the Department about his circumstances. In response, he indicated that he came to Australia to study his Masters and he had a problem (his father’s health and he got depressed). He said he came with dreams to finish his Masters.
The Tribunal asked the applicant if there was a reason why he could not do his Masters in India, and he responded that there was no reason.
The Tribunal asked the applicant why he did not go back to India and why he stayed in Australia when he realised he was not studying anymore, given the whole reason for being on the student visa was to study. He responded that his aim was to complete his Masters in Australia.
When the Tribunal asked the applicant whether he had told his parents about his situation, he said yes.
The Tribunal asked the applicant what he had been doing during the time he stopped studying in early 2017 to the time he got the notice from the Department in late 2017, and in response he said he went on his study break and he was trying to get admission to a new course, and then he had a problem with his father.
In respect of the above, the Tribunal makes the following findings. The Tribunal accepts:
-He was adversely affected due to his father’s health situation;
-This [coming to Australia in 2016] was the first time he was away from his family and so he became lonely and depressed;
-He moved from Brisbane to Sydney, and decided that he preferred to be in Sydney as he felt better being in Sydney because he had contact with his fellow Indians;
-He withdrew from the Master of Information Technology at University of Southern Queensland, but could not find the right advice about changing his enrolment to a new college or university;
-In late 2016 and early 2017, his father’s health became quite serious, where his father was ultimately admitted to hospital for some very critical medical procedures;
-He provided financial assistance to help his father in India to help fund his father’s medical assistance;
-His father’s health situation worsened and he provided further financial assistance to his father;
-He was aware that he was obliged to comply with his visa obligations and continue his studies, but rather than do this he chose to instead assist his father;
-As a result of his circumstances, he had been quite depressed.
-He already has a very good basic qualification and experience with top tier technology companies as a software engineer;
-He received poor advice from another agent, and so did not provide a proper response to the Department and only attached some medical certificates from his father;
-He has a very solid background with a Bachelor of Computing Technology and substantial experience as a software engineer with top tier technology firms like IBM and Accenture.
The Tribunal places some weight on:
-The letter from Dr Sai Karthik Kommineni of Tamma Vinod Reddy’s Sruthi Hospitals dated 28/5/2019.
-Medical information in respect to the applicant’s father, Mr G. Penchal Reddy.
However, the Tribunal does not accept that the applicant took reasonable steps to maintain his enrolment where he did not contact the course provider or the Department to notify them of his circumstances or to request assistance in an endeavour to maintain his course enrolment. Accordingly, the Tribunal places high weight on this information against the applicant.
In addition, the Tribunal does not accept that the applicant took reasonable steps to maintain his enrolment where he knowingly chose to financially support his family in India rather than pay his course fees. The Tribunal finds that the applicant was aware that he had provided a financial guarantee that he could afford to pay for the cost of his tuition and to support himself whilst on his visa. Whilst the Tribunal does have sympathy for the applicant circumstances, the Tribunal finds that the applicant made a conscious decision to financially support his family in India rather than pay his course fees – an action that could only ever result in the applicant breaching the conditions of his student visa. Accordingly, the Tribunal places high weight on this information against the applicant.
The Tribunal finds that the applicant had experienced mental health issues, and currently still has fragile mental health and the Tribunal does give the applicant some weight on his favour.
In assessing the above, the Tribunal finds that the applicant failed to take reasonable steps in regard to maintaining his enrolment in his registered course of study. Accordingly, the Tribunal gives high weight on this information against the applicant in regard to this factor.
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
The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
The extent of compliance with visa conditions
The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled.
The applicant indicated in response that his father will be disappointed (who sold property to support his some to get the Master’s degree) and there would be difficulties with his future career if he did not have more degrees.
The Tribunal put to the applicant that he had already given evidence that he was very well qualified and that he had worked for top tier companies in India. In response, he indicated that he would still suffer a career setback if he returned to India without the Master’s degree. He indicated that the Master’s degree would make him more competitive for higher positions.
The Tribunal put to the applicant that it was aware that the applicant had mental health issues, and asked the applicant how cancelling his student visa would impact on his mental health. He indicated in response that he would get more depressed.
The Tribunal accepts that the applicant would face emotional hardship if his visa was cancelled and gives this some weight. The Tribunal accepts that the applicant and his family would be disappointed if his visa was cancelled and gives this some weight. The Tribunal accepts that the applicant may not be as competitive for higher positons if his visa was cancelled and gives this some weight. The Tribunal accepts that the applicant may get more depressed if his visa was cancelled and gives this some weight.
The Tribunal accepts these circumstances and overall gives some weight in the applicant’s favour in regard to this factor.
Past and present behaviour of the applicant towards the Department
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
The applicant does not have any dependents 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
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.

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. The Tribunal notes that the applicant indicated that if his student visa was cancelled he would not be willing to return to India until he completed his Master’s degree – and the Tribunal finds that there is a risk that the applicant may stay in Australia unlawfully.
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.
The Tribunal places low 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
The Tribunal asked the applicant if he feared anything in returning to India. In response he said “a lot of things.” By this he explained that he had told his colleagues that he would finish his Master’s degree and he was concerned that he would not be able to get a job in Information Technology again because of the gap in his work history.
In consideration of the above, 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 low weight on this information in the applicant’s favour.
Any other relevant matters
When the Tribunal asked the applicant whether there were any other relevant matters before the Tribunal, he said “yes.” He said he recently approached a work colleague who told him to finish the Masters. He said his father was illiterate and he wanted to study so he could have a better life. The Tribunal accepts these matters and gives some weight in the applicant’s favour in regard.
The representative made submissions that essentially confirmed the applicant’s previous evidence and the written submissions. The representative indicated that he was endeavouring to get the applicant a conditional offer to enrol in a Master’s degree. The Tribunal accepts these matters and gives some weight in the applicant’s favour in regard.
No other relevant matters were put to the Tribunal.
Conclusion
The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa on 01 July 2016.
The Tribunal finds that the applicant has not been enrolled in a registered course of study since 17 March 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).
The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.
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 573 Higher Education Sector visa.
Joseph Lindsay

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.

[2019] AATA 4920

6 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction