Nallapu (Migration)

[2020] AATA 1076

Nallapu (Migration) [2020] AATA 1076 (16 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harinadha Reddy Nallapu

CASE NUMBER:  1932721

HOME AFFAIRS REFERENCE(S):          BCC2019/3284502

MEMBER:Peter Booth

DATE:16 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 January 2020 at 11:46am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – applicant changed to diploma level course – applicant did not attend hearing – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 November 2019 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with condition 8202(2)(b) of Schedule 8 to the Migration Regulations 1994 in that he had not maintained enrolment in a registered course that, once completed, would provide a qualification that was the same level as, or a higher level than, the registered course in relation to which his visa was granted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. By letter dated 19 December 2019 the Tribunal wrote to the applicant and invited him to attend the hearing of his application for review. The letter was sent by email on 19 December 2019 (at 9:09 am) to the email address provided by the applicant in his application for review. The letter informed the applicant that his application for review would be heard on 15 January 2020 at 11:30 am. He was informed he should attend at the Tribunal’s office at level 6, 83 Clarence Street Sydney in New South Wales. The applicant did not attend on the appointed day and time.

4. Pursuant to s.362B of the Act where the applicant is invited pursuant to section 360 to appear before the Tribunal and does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. In the circumstances the Tribunal will make a decision on the applicant’s application for review without taking any further action to allow or enable the applicant to appear before it.

5. 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

6. 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 Regulations. If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with condition 8202?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant must maintain enrolment in a registered course that, once completed, will provide a qualification that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b). In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a registered course at the same level or higher for which he was granted his student visa.

8. The delegate’s decision dated 14 November 2019 records the reasons for cancellation of the applicant’s student visa. The applicant’s visa was granted on 23 October 2018 in relation to a Master of Information Technology course, which would provide a level 9 qualification. The Provider Registration and International Student Management System (PRISMS) indicated that the applicant’s enrolment in this course was cancelled on 19 March 2019. PRISMS indicates that the highest confirmed enrolment held by the applicant is a Diploma of Business, which would provide a level 5 qualification. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course at the same level as or higher than the registered course in relation to which his visa was granted. Accordingly, the applicant has not complied with condition 8202(2)(b).

   Consideration of the discretion to cancel the visa

9. 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 Procedural Instruction ‘General visa cancellation powers’.

10. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover the following matters.

    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

11. The applicant arrived in Australia as the holder of a Subclass 500 student visa. Apparently he travelled to Australia for the purposes of studying a Master of Information Technology course. There is no evidence as to whether he has a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

12. The delegate’s decision dated 14 November 2019 records that his enrolment in the Master of Information Technology course was cancelled on 19 March 2019. This was an AQF level 9 qualification. PRISMS indicates that the applicant has a confirmation of enrolment in a Diploma of Business. This is an AQF level 5 qualification.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

13. In the information available to the Tribunal the applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

14. The applicant was sent notification of intention to consider cancellation of his student visa. That notification was dated 17 October 2019. The delegate’s decision dated 14 November 2019 stated that no response was received from the applicant. In those circumstances, there being no other material provided by the applicant, the Tribunal gives this factor no weight.

    Past and present behaviour of the visa holder towards the Department

15. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Whether there would be consequential cancellations under s.140

16. The Tribunal was provided with no evidence on this point and gives it little weight.

    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

17. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    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

18. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

19. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Any other relevant matters

20. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

22. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Peter Booth
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(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.