Mullapudi (Migration)

[2018] AATA 4927

Mullapudi (Migration) [2018] AATA 4927 (7 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mahesh Kumar Mullapudi

CASE NUMBER:  1725813

DIBP REFERENCE(S):  BCC2017/2877752

MEMBER:Tigiilagi Eteuati

DATE AND TIME OF

ORAL DECISION AND REASONS:          7 September 2018 at 12:00 pm (QLD time)

DATE OF WRITTEN RECORD:                24 October 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 24 October 2018 at 5:57pm

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in registered course – course cancelled – unsatisfactory course progress – failed every subject – victim of physical attack – enrolment in vocational course after NOICC – did not begin new course – possesses Bachelor qualifications – no conditions on bridging visa – 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 19 October 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s subclass 573 higher education sector 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.  The applicant appeared before the Tribunal on 7 September 2018 to give evidence and present arguments. 

   Consideration of claims in evidence

4. 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?

5. Condition 8202, as it applies in this case, requires holders of student visas to remain enrolled in registered courses.  In the present case the applicant’s visa was cancelled on the basis the applicant had not been 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 Master of Professional Accounting at Charles Sturt University was cancelled on 31 January 2017.  The applicant was not enrolled in any registered course until 18 September 2017, after he received the Notice of Intention to Consider Cancellation of his visa on 14 September 2017.  This has been admitted by the applicant and the Tribunal accepts that the applicant was not enrolled in a registered course between these dates.  Accordingly the applicant has not complied with condition 8202.

   Consideration of the discretion to cancel the visa.

6. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.  There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion.  However, the Tribunal has had regard to all the matters and information provided by the applicant and his representative as to why the visa should not be cancelled.  The Tribunal has also considered government policy guidelines contained in the Department’s Procedural Advice Manual. 

7. When the applicant arrived in Australia on 13 March 2016 he was enrolled in a Master of Professional Accounting at Charles Sturt University.  The applicant indicated that he attended that course in the first and second semesters of 2016.  He said that he travelled to the Northern Territory, from Melbourne, where the course was being held, in January 2017, before his third semester with the institution was set to begin in March 2017.  He said that during this time he was staying with family, and that he was working in a stationery store in the Northern Territory. 

8. He said that on an evening in February 2017, while he was working in the store, that four men came into the store to rob it, and that as a result, he was attacked.  He said that he suffered an abrasion on his head which required stitches.  He said that he reported the matter to police, and he provided evidence of a contact advice card, which, while it provides nothing about the incident itself, provides contact details for a senior constable with the Northern Territory Police.  That card is dated 21 February 2017. 

9. In the applicant’s statement, which he provided to the Department, and then in his evidence before the Tribunal, the applicant indicated that as a result of the attack he could not concentrate on his studies and failed more than 50 per cent of the subjects in which he was enrolled, which led to the cancellation of his Masters degree enrolment.  The Tribunal put to the applicant, in the required way, information from the PRISM system, which indicated that his enrolment in the Masters of Professional Accounting at Charles Sturt University was cancelled on 31 January 2017, before the attack, for unsatisfactory course progress. 

10. This information appeared to be contrary to the account given by the applicant, because of course the applicant had been excluded from studies at Charles Sturt University and his enrolment was cancelled in January 2017 because of unsatisfactory course progress before the attack in February 2017.  Therefore, the reason for the unsatisfactory course progress at Charles Sturt University could not have been as a result of the attack. 

11. Once this information was put to the applicant, the applicant conceded that prior to the attack his enrolment had been cancelled because he had failed 50 per cent of his units. Later on the applicant admitted that in fact he had failed 100 per cent of his units.  His story, at this point, appeared to change, and he appeared to indicate that the reason that he did not enrol in another course since 2016 was because of the incident, the attack that occurred in February 2017. 

12. While the Tribunal has no substantive evidence to indicate that this attack ever occurred, for the purposes of these proceedings, the Tribunal is willing to accept that the applicant was working in the Northern Territory in February 2017 when he was attacked while working in a stationary store.  The applicant also provided no evidence, no medical evidence or psychological evidence, as to the impact of the attack. However, the Tribunal is willing to accept, for the purpose of the proceedings, that the applicant sustained a cut or an abrasion on his head, for which he required stitches. 

13. The evidence of the applicant is that he has not studied anything since the second semester in 2016.  For the record, it is now September 2018.  The applicant did not enrol in any course until 18 September 2017, some four days after the Notice of Intention to Consider Cancellation of his visa was issued.  At that time he enrolled in a Diploma of Leadership and Management at United Business College.  The Tribunal notes that this is a vocational course, not a higher education course, and therefore did not meet his study requirements for the purposes of the subclass 573 visa. 

14. That course was to begin on 2 October 2017, and yet the applicant admitted that he did not begin this course.  He said that the reason he did not begin this course is because he received Notice of Intention to Consider Cancellation of his visa from the Department.  The Department cancelled the applicant’s visa on 19 October 2017, and the applicant was issued with a bridging visa.  That bridging visa did not contain any condition that the applicant could not study, and yet the applicant has remained unenrolled and not studied from the end of 2016 up until the present day.

15. The Tribunal asked the applicant whether he or any of his family members would suffer any hardship if his visa remained cancelled.  The applicant indicated that both his father and mother and he would suffer hardship, as his father and mother worked in the agricultural sector, and they had hoped that he would be able to receive post-graduate qualifications in Australia so that he could help manage their business in India.  He said that his parents had expended money for him to attend university here, and it was an expectation that he would be able to complete a course before he returned to India. 

16. The applicant indicated that the reason that he was unable to pass a single course of the five subjects that he studied in the Masters program was that they were too difficult.  He said that that was the reason that he enrolled in the Diploma of Leadership and Management so that he could undertake a simpler course before returning.  The Tribunal put to the applicant that the applicant had already achieved a Bachelor’s level degree in Commerce in India, and that it was difficult to see how a Diploma from a vocational college in Australia would enhance his prospects or his experience such that it would greatly enhance his performance in any management or leadership role in the family business in India.  The applicant said that the important thing was that the qualification was one from overseas, which would be looked upon positively by his parents in India. 

17. The Tribunal notes that if the visa had not been cancelled it would have expired in April 2018.  Thus it appears that the only utility to the proceedings is that if the applicant were successful, he would be able to apply for another visa onshore, whereas if it were unsuccessful the applicant would probably be prevented from successfully applying for another visa for a period of some three years after the cancellation of the current visa. 

18. The Tribunal raised with the applicant its concern, that because the applicant had failed every single subject in which he had been enrolled in his Masters course, that he may not have the ability to successfully undertake a course of study in Australia.  The applicant agreed that those courses were too difficult for him, and again repeated that was the reason why he enrolled in the Diploma level course. 

19. The Tribunal raised with the applicant its concern that because the applicant had not been enrolled in any course between February and September 2017, that he only applied for enrolment after he received the Notice of Intention to Consider Cancellation of his visa, because he has not studied from the time of cancellation until today, despite there being no “no study” condition attached to his visa, and because the applicant has not undertaken any formal study since the end of 2016, that the applicant may not have the will or desire to successfully undertake an education course in Australia.  The applicant said that he wished for the Tribunal to give him a chance, that he did wish to complete a Diploma of Leadership and Management and that, if given a chance, he would enrol in a Diploma of Leadership and Management in Australia.   

20. The Tribunal finds that the applicant does not have the ability to successfully undertake an education program in Australia.  This is evidenced by the applicant’s extremely poor academic performance at Charles Sturt University, when he failed every single unit in which he was enrolled in 2016. 

21. The Tribunal also finds that the applicant does not have the will or desire to successfully undertake an education course in Australia.  That is evidenced by the fact that the applicant did not seek to enrol in any course since his enrolment in Charles Sturt University was cancelled in January 2017, until after he received the Notice of Intention to Cancel in September 2017.

22. Further, the Tribunal finds that this finding is supported by the fact that the applicant, despite not having any no-study condition on his visa, has not studied anything in Australia after the cancellation of his visa.  In all, the applicant has not studied, or made any significant attempts to study since 2016. 

23. The Tribunal is willing to accept that the applicant and his family members would suffer disappointment and may be upset that the applicant’s visa was cancelled before he was able to complete any courses in Australia. 

24. The Tribunal has also taken into account that the applicant was attacked in February 2017, and that for some time after that the applicant may have suffered either physically or some mental stress because of that incident.  However, the Tribunal does not accept that that provides a full or reasonable explanation why the applicant has failed to undertake any form of study since 2016. 

25. The Tribunal accepts that the applicant’s parents and the applicant would have liked him to complete some course in Australia before returning home.   However, the Tribunal notes that the applicant already holds a Bachelor of Commerce from a university in India, and sees no reason why his future career in the family business would be affected by his inability to complete a vocational course in Australia.

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

    DECISION

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

    Tigiilagi Eteuati
    Member