Sathavaram (Migration)

Sathavaram (Migration) [2019] AATA 3583 (31 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Praveen Kumar Reddy Sathavaram
CASE NUMBER:  1722333
HOME AFFAIRS REFERENCE(S):           BCC2017/2563454
MEMBER:Mark O'Loughlin
DATE:31 July 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 31 July 2019 at 3:55pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 572 Vocational Education and Training Sector visa –not enrolled in a registered course of study – breached condition 8202 – depression – suffered an aggravation of a pre-existing leg injury–no documentary evidence –decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 12 September 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had failed to comply with a condition of his visa, namely condition 8202 and in particular the requirement that he be enrolled in a registered course during the term of the visa. 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 by telephone on 1 July 2019 to give evidence and present arguments.
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.
The documents available to the Tribunal to which it has had regard are;
a.Notice of intention to consider cancellation emailed to the applicant by the Department on 29 August 2017;
b.Applicant’s email in response dated 4 September 2017;
Documents provided to the Tribunal by the applicant and to which it has had regard are;
a.Copy Departmental decision dated 12 September 2017;
b.Email from the applicant to National Registry Mailbox dated 20 May 2018;
Documents to which the Tribunal has had regard but which are not relevant to its decision are;
a.Prisms records and copies of cancelled Confirmation of Enrolment certificates upon which the Tribunal did not rely as it relied on the applicant’s testimony;
b.Movement details upon which the Tribunal did not rely as the relevant information was provided by the applicant’s testimony;
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)
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant gave evidence that he had been enrolled in and Advanced Diploma of Marketing. He said that he was not aware at the time but the enrolment was cancelled in Nobermber 2016 although he did not find out until August 2017 when he received the notice of intention to cancel his visa.
The applicant said he had not been studying since about October 2016 but that he did not advise the Department because he was struggling with depression.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).
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 applicant told the Tribunal that he had first come to Australia on 2 June 2008 and that he studied a course in Community Welfare at Cambridge College. He believes that course was wound up before he finished.
He said, and the Tribunal accepts, that he stayed on a range of student visas but in about 2012 or 2013 he became a dependant on his then wife’s visa. It is not important for the purposes of this decision but the Tribunal notes that the applicant later said that he became a dependant on his wife’s visa in 2010. The Tribunal makes no criticism of the applicant’s variable evidence on this less than critical matter.
The applicant said that when his wife went back to India she told the department about their divorce and that he applied for a student visa of his own.
The applicant said that his visa was granted but that he went back to India in about May 2015 and stayed there for about a year. His visa was cancelled in that time.
The applicant explained that he had an accident in India when he fell from a balcony, which had prevented him from returning to Australia. He said that he explained this and his visa was reinstated.
The applicant said that he started the Advanced Diploma of Marketing when he returned and he believed that he continued to attend classes until October 2016.
He said that he accepts that his enrolment was cancelled in November 2016 but that he was not aware at the time because he was suffering from depression and also with leg problems.
He said that he had a friend who is a doctor and whom he consulted 2 or 3 times in respect of both his leg and back pain. The Tribunal noted from the Delegate’s decision that there was reference to a back condition but not to a leg condition. The applicant said that he did not have a back problem when he returned to Australia but he did have some trouble with his leg which had been fractured in the same fall.
As the Tribunal did not have access to the medical report, prepared by a doctor in an Indian hospital and date 10 May 2015, the applicant was asked whether the report referred to the fractured leg as well as the back, but he did not know.
In any event the applicant said that he saw a friend who is a physiotherapist who suggested that he do some exercises.
The Tribunal put to the applicant that the extract from the medical report that is quoted in the Delegate’s decision says that the applicant should be fit for duties from 10 May 2016. The applicant said that his leg started swelling in about August 2016.
He said that the leg bothered him for about 2 months from then and that it substantially slowed his walking for about 2 weeks after which his walking was better although still sore.
The applicant also said that in June 2015, when he was in India, he remarried his ex-wife in an Indian ceremony. He said that wedding was on 12 June 2015.
The applicant said that he was still married when he returned to Australia in 2016 but that his wife wanted to stay in India and not come back to Australia while he finished his studies.
He said that his wife sought a divorce in India and that he became depressed because of that. He did not want to sign the papers and he dwelled on the issue. He said that he was depressed and that that lasted for about a year. He said that at first he would just sit at home but that after 8 or 9 months he started to improve.
He said that he saw a counsellor about 3 times in March 2017 but could not remember her name.
He said that in October 2016 he was still studying but that he could not concentrate in class and his mind would wander.
The applicant said that his leg and his depression are now fine and that he has remarried.
The Tribunal observes at this point that the email he sent to the registry on 20 May 2018 reveals that the applicant had intended to return to India temporarily but that Immigration at the Melbourne Airport advised him that he could not return to Australia.
The applicant said that he has lived in India since then and that he has been working in the marketing department of a pharmaceutical company.
There is no evidence before the Tribunal to suggest that the applicant has a compelling need to travel to or remain in Australia.
The Tribunal notes that the applicant’s breach of the condition that he be enrolled was substantial lasting as it did from about November 2016 until August 2017.
The applicant gave evidence that the cancellation of his visa would not cause him or anyone else any degree of hardship, either financial, psychological, emotional or any other sort.
He was asked if he would at least be disappointed, but he said that he would not.
The Tribunal asked him if he actually still wants his visa to which he replied that he did but that if he did not get it that would be “OK”.
The Tribunal notes that the circumstances in which the ground of cancellation arose are suggested to have been outside of the applicant’s control in that he said that he had depression for which he was being treated and had suffered an aggravation of a pre-existing leg injury, but those assertions were not supported by any independent evidence despite the applicant saying that it must exist and must be available to him. He did not seek the opportunity to obtain that evidence.
The applicant’s past and present behaviour towards the department do not suggest that his visa should be cancelled.
There is no evidence that cancellation of the applicant’s student visa will result in any consequential cancellations under section 140 of the Migration Act.
The applicant is no longer living in Australia and cannot return unless he is granted another visa so the cancellation of this visa does not therefore put him at risk of being an unlawful resident and liable to detention of any sort.
The applicant may be restricted in making a further visa application in the future by reason of the cancellation of this visa bringing him within the risk factors defined in Public Interest Criterion 4013 and therefore restricted in being granted a further visa for 3 years after the cancellation of this visa.
There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.
The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.
The Tribunal has weighed the matters set out above together and finds that, although the applicant suggests that the grounds for cancellation arose from matters beyond his control namely depression and a leg injury, he has failed to provide medical evidence about those conditions despite his concession that he could do so. The Tribunal is not satisfied that the grounds for cancellation did arise from matters beyond the applicant’s control and further notes that the applicant did not suggest that any hardship or even disappointment would arise from a decision to cancel his visa.
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 Class TU visa.
Mark O'Loughlin
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 3583

31 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies