Komatireddy (Migration)

[2019] AATA 5621

Komatireddy (Migration) [2019] AATA 5621 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prashanth Reddy Komatireddy

CASE NUMBER:  1812575

DIBP REFERENCE(S):  BCC2018/820510

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         12 June 2019 at 10:25 am (VIC time)

DATE OF WRITTEN RECORD:                21 August 2019

PLACE OF DECISION:  Melbourne

Statement made on 21 August 2019 at 5:05pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Master of Professional Accounting – enrolled in registered course – medical evidence provided – unfit to start course – evidence of course payment provided – compelling need to remain in Australia – genuine desire to continue studying – circumstances out of applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 May 2018 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 June 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision of the Administrative Appeals Tribunal in relation to case number 1812575 in the matter of Prashanth Reddy Komatireddy. The applicant is a citizen of India, he seeks review of a decision made by a delegate of the Minister for Home Affairs on 1 May 2018 cancelling his subclass 500 student visa pursuant to section 116(1)(b) of the Migration Act.

4. The applicant’s student visa was granted on 19 April 2017 with an original expiry date of 30 September 2018, which provided more than 17 months during which the applicant would be permitted to reside in Australia for the purposes of fulltime study.  The visa had been granted on the basis that the applicant would remain enrolled in and make satisfactory progress in relation to a course specifically a Master of Professional Accounting at the Holmes Institute.

5. I note that the applicant at the time of applying for the visa was already enrolled in a Master of Professional Accounting and was able to do that on a previous visa, which he had been granted but the course was incomplete, so this appears to be the reason why he needed to apply for a second visa.

6. The tribunal was presented with the interim statement of results from the Holmes Institute, which indicated that he passed all but one of six units in that Masters course.  And it is evident that he will need to do a few more units in order to complete that particular course hence the application for a further visa.

7. The delegate cancelled the applicant’s visa as the second visa on the basis the applicant had breached a condition of the visa, which required him to remain 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.

8. The applicant appeared before the tribunal today being 12 June to give evidence and present arguments. 

9. The applicant’s visa was subject to a number of conditions when the visa was granted.  In the present case the issue is whether the primary applicant breached condition 8202 of the Regulations.  If the applicant breached that condition the visa may then be cancelled pursuant to section 116.  Condition 8202(2)(a) of the applicant’s visa required that he remain enrolled in a registered course.

10. In the delegate’s decision record the delegate identified the period from 10 August 2017 up to 1 May 2018 as the relevant period in which the applicant was not enrolled in a registered course. This amounted to more than eight months during which the applicant was in continuous breach of the visa. The delegate’s finding in this respect was based on a report which it had obtained from the Department of Education and Training Provider Registration of International Student Management System known as PRISMS. That database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 to provide the means for education providers in Australia to comply with legislative requirements relating to international students.

11. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once it has been issued.  In particular it may be used by a course provider to report that they have cancelled a particular student’s confirmation of enrolment in a course for which they had previously enrolled and the reasons for doing so.

12. The PRISMS report obtained by the delegate indicated that the applicant’s course provider had cancelled the enrolment on the date which I specified above being 10 August 2017 onwards.  The cessation of enrolment obviously came to the attention of the department and they wrote to him that is they wrote to the applicant, by letter dated 4 April 2018 indicating that they were going to cancel the visa on this basis and they invited him to comment, which he did.  But ultimately the delegate obviously did not accept the explanation proffered by the applicant.

13. The applicant at the tribunal conceded that he was not enrolled during that period, so on that basis the first part of the inquiry of the tribunal today is concluded on the basis that the applicant concedes the breach.  But that is not the end of the matter.  Even if he has breached the visa that does not automatically result in a cancellation, it really falls to the discretion of the decision maker, that being the tribunal.

14. There are no matters specified in the Act or Regulations that must be considered for the exercise of this discretion.  However, the tribunal is mindful it should consider the circumstances of the case, including any matters raised by the applicant in the course of the hearing and any other relevant matters identified in the department’s procedures advice manual.

15. The applicant gave evidence that he did not re‑enrol in August 2017 when he was supposed to due to health issues.  The tribunal inquired as to what exactly were the nature of those health issues and he referred to having received a back injury that was temporary in nature from playing cricket.  The applicant produced medical certificates, which although vague, said that he was unfit for work from 1 August to 15 August 2017 and then from 15 August to 5 September 2017, which would appear to have been a critical period because it coincided with the commencement of the last course for that semester, which he really should have started, but he was unable to attend.

16. He provided no other medical certificates going beyond 5 September 2017.  But it appears that he was unable to simply recommence studies because the semester had already started.  The applicant stated in oral evidence that he contacted the Holmes Institute and applied for a deferral of the course but their advice, according to the applicant, which the tribunal accepts, is that he simply has to reapply and he did.

17. But the earliest opportunity for him to continue his partially completed course was recommencing it the following year in March of 2018, so understandably the applicant had to wait.  But it was not just a case of him doing nothing, he did actually re‑enrol and attempt to pay for the first half of the course in 2018 and to that end he produced evidence of a payment of $4,000 being a payment he made on 26 March 2018 via electronic funds transferred to Holmes College.  He provided a copy of the screenshot from his mobile phone of the transaction.  He also displayed to the tribunal in real time accessing his Smartphone account that particular transaction using his banking application.  So the tribunal is satisfied that he did make that payment on 26 March.

18. But by this time the investigations unbeknownst to the applicant were already under way and so he received a letter shortly thereafter literally less than two weeks after he made that payment he received the notice of intent to cancel, which is unfortunate because it is clear from the payment that he was trying to get back on track for the purpose of completing his partially completed Master of Professional Accounting.

19. In these circumstances it is the tribunal’s view that the visa should not have been cancelled because there remains a compelling need for him to remain in Australia and complete that course.  It will be of significant benefit to him once it is completed and he returns to India.

20. The medical evidence obviously whilst it is not the best in terms of its description of the injury it clearly states that he was incapacitated and unfit to work during that critical first month of the Masters course and as a result of not being able to attend he simply could not pick up partway through the semester.  And as is consistent with the practices of tertiary institutions they divide their teaching periods often up two years and the next first available one was to start in March.

21. So all of that is consistent with a genuine desire to continue studying and the tribunal is satisfied that the circumstances in this instance of the breach were to some extent out of his control.  It is acknowledged that he could have taken further steps to get a more formal record on the PRISMS database of a deferral.  That was not done but that should not result in the cancellation of a visa in these particular circumstances.

22. The tribunal has considered all other relevant factors.  There upon the circumstances of the applicant in this case and they are rather insignificant or operate in the applicant’s favour.  So those are the reasons for the decision in case number 1812575. 

    DECISION

23. The tribunal sets aside the decision under review and substitutes in its place a decision not to cancel the student visa.

    Dr Jason Harkess
    Member