Morampudi (Migration)

[2018] AATA 5240

Morampudi (Migration) [2018] AATA 5240 (7 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Venkata Satya Praneeth Morampudi

CASE NUMBER:  1810847

DIBP REFERENCE(S):  BCC2018/193254

MEMBER:Tigiilagi Eteuati

DATE AND TIME OF

ORAL DECISION AND REASONS:          7 September 2018 at 3:17 am (QLD time)

DATE OF WRITTEN RECORD:                28 November 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 28 November 2018 at 5:48pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – heart condition – grandfather passed away – access to funds – poor academic history – desire and ability to successfully undertake an education course in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 April 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s subclass 500 higher education visa under section 116 of the Migration Act 1958 (the Act).

2. At the hearing on 7 September 2018 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. The delegate cancelled the visa on the basis that the applicant breached the condition of his visa to be enrolled in a registered course.  The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 7 September 2018 to give evidence and present arguments.

   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. If the applicant has breached that condition, under section 116 of the Act, the visa may be cancelled.

   Did the applicant comply with condition 8202? 

6. Condition 8202, as it applies in this case, requires student visa holders to remain enrolled in registered courses.  In the present case the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.  The Minister’s delegate found that the applicant had not been enrolled in a registered course since his enrolment in a Masters of Information Technology at James Cook University was cancelled on 7 August 2017.This was conceded by the applicant and the Tribunal accepts that the applicant was not enrolled in a registered course from that date. 

7. On the evidence before the Tribunal the applicant was not enrolled in a registered course.  Accordingly, the applicant has not complied with condition 8202.

   Consideration of the discretion to cancel the visa 

8. Having found that the applicant has not complied with the condition of the visa the Tribunal must consider whether to exercise its discretion to cancel the visa.

9. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion.  However, the Tribunal has had regard to matters raised by the applicant and his representatives as to why the visa should not be cancelled.  The Tribunal has also considered government policy guidelines contained in the Department’s Procedures Advice Manual.

10. When the applicant first arrived in Australia in June 2014 he was enrolled in a Masters of Information Technology degree at James Cook University.  The applicant claims that from late 2015 he started having heart problems which were diagnosed in April 2016.

11. The applicant applied for a deferment of his degree at James Cook University and that was granted until May 2016.  The applicant indicated that he wanted a second opinion in relation to his heart condition.  He said that he travelled to India for a few weeks in May 2016.  He said that he attended doctors in India in relation to his heart problems but was told that there was nothing wrong with his heart.

12. He said that while he was in India during that period his grandfather passed away although he has provided no evidence that this occurred.  He said that, as his grandfather passed away and his grandfather was responsible for paying his fees, he was no longer able to pay his fees as his family did not have access to the money in his grandfather’s bank account after he passed away.

13. He said that he arrived back in Australia in May 2016 and re enrolled at James Cook University in a Master’s program in July 2016.  He said that his parents took out a loan to enable him to pay the fees.

14. As the applicant’s first visa was due to expire in September 2016 he applied for another visa, this time a subclass 500 visa, which was granted in October 2016.  The Tribunal notes that the applicant would have been required when applying for his student visa to provide evidence that he was in a position to meet the financial costs of his studies and living in Australia.

15. The applicant said that, as a result of the combination of his family not being able to access his grandfather’s accounts and the demonetisation in India in late 2016, that he was unable to pay his fees in 2017 and therefore his enrolment in the Master’s course was cancelled in August 2017.

16. The Tribunal asked the applicant whether he had any further problems with his heart after he returned from India where the doctors there had said that there were no problems with his heart.  The applicant said that he had no further problems with his heart and indicated that he had stopped drinking when the heart problems arose.

17. The Tribunal indicated to the applicant that his evidence before the Tribunal was substantially different from that provided in response to the Notice of Intention to Consider Cancellation of his visa (NOICC).  In that response the applicant indicated that the reason that he ceased his studies in 2017 was as a result of a combination of being upset because his grandfather had passed away and the pressure he had on him to return to India to have heart surgery.

18. The applicant indicated that although nothing was wrong with his heart, that he had no problems with his heart since 2016, that his parents nonetheless wanted him to have a heart operation.  The applicant indicated that he had not mentioned anything about the monetary problems because, in his words, he did not think it would be good to disclose this to the Department.

19. The Tribunal rejects the applicant’s assertions made for the first time in the hearing that he did not have the funds to pay for his course.  First, as mentioned before, the applicant would have had to show proof to the Department that he had adequate funds to meet his financial obligations in Australia when he applied for his second visa, which was granted in October 2016.

20. In addition, there is absolutely no mention in the applicant’s response to the NOICC that the reason for him ceasing studies was that he did not have the financial ability to pay his fees.

21. As matters stand the applicant’s visa was cancelled on 12 April 2018.  The applicant has not sought to enrol in any other course.  The applicant has not approached the Department to waive the no study condition on his visa and the applicant has not held any enrolment in a course of study for over a year.

22. The Tribunal asked the applicant whether he or any members of his family would suffer any hardship if his visa remained cancelled and he had to return to India.  The applicant said that he would not.

23. The Tribunal raised with the applicant its concern that, because the applicant indicated that he had only passed four subjects of the 16 that he undertook in his Master’s program, that he may not have the ability to successfully undertake an education course in Australia.  The applicant told the Tribunal that he had not applied himself fully in the past and that he was confident that if given the opportunity he would be able to pass a course in the future. 

24. The Tribunal raised with the applicant its concern that, because the applicant had failed to pay his fees in 2017, that he had not been enrolled in any course since, that he had not sought to waive the no study condition on his bridging visa, and because the applicant said that he still owed James Cook University some $6,000, which he has still not paid although he has told the Tribunal that he could afford to pay that amount, that the applicant does not have the will or desire to successfully undertake a course of study in Australia.

25. The applicant indicated that he did wish to finish a Master’s Degree in Australia and that if given the opportunity he would do so.  He said that he had been waiting to pay the fees and that he planned on paying the owing $6,000 to James Cook University next semester.

26. The Tribunal finds that the applicant does not have the ability to successfully undertake an education course in Australia.  That is evidenced by his extremely poor academic history, as mentioned previously.

27. Further, the Tribunal finds that the applicant does not have the will or desire to successfully undertake a course in Australia.  That is evidenced by the applicant’s failure to pay his fees in 2017 despite having the ability to do so and that he has not enrolled in any course since, that he did not seek to waive the no study condition on his visa, and that as yet he has failed to repay the $6,000 owing to James Cook University.

28. The Tribunal is willing to accept that the applicant and his family members may suffer some disappointment and be upset that his visa was cancelled before he was able to successfully complete any course in Australia. However, the Tribunal finds that the applicant’s lack of desire and ability to successfully undertake an education course in Australia heavily outweighs any hardship that the applicant or his family members may face because of the cancellation of the applicant’s visa.

29. Considering the circumstances as a whole the Tribunal considers that the visa should be cancelled.

    DECISION

30. The Tribunal affirms the decision to cancel the applicant’s class TU visa.

    Tigiilagi Eteuati
    Member