Vadlamudi v Minister for Immigration

[2018] FCCA 2274

FEDERAL CIRCUIT COURT OF AUSTRALIA

VADLAMUDI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2274

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.357A

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Applicant: NAGARJUNA VADLAMUDI

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1049 of 2017

Judgment of: Judge Vasta

Hearing date: 6 August 2018

Date of Last Submission: 6 August 2018

Delivered at: Brisbane

Delivered on: 6 August 2018

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed on 24 October 2017 be dismissed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the First Respondent’s costs of and incidental to this application fixed in the sum of $5,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1049 of 2017

NAGARJUNA VADLAMUDI

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The Applicant, Nagarjuna Vadlamudi, is a citizen of India.  He was granted a subclass 573 visa on 13 January 2015.  This is a higher education student visa that allows the applicant to come to Australia to study a bachelor or higher type degree at educational institutions and then return home to his or her country and utilise the benefits of the course of study. 

2. The Applicant was to come here to Australia to undertake studies in the Bachelor of Business; however, he was not enrolled in any course.

3. The delegate ended up cancelling the visa.  This was because the delegate found that the applicant had breached a condition of the visa.  The visa required him to:

   a)be enrolled in a registered course; 

   b)not be certified by their education provider as not achieving a satisfactory course progress;  and

   c)not to be certified by the education provider as not achieving satisfactory course attendance. 

4. The Applicant’s visa was cancelled by the delegate on the basis that the Applicant was not enrolled in a registered course.  The Applicant admitted as much to the Administrative Appeals Tribunal (“the AAT”)

5. He told the AAT, however, that when he arrived in Australia he was to study the Bachelor of Business degree but he had given another person $10,000.00 to pay his fees.  That person made off with the money.  He was unable to pay his tuition fees and he didn’t commence his course. 

6. That meant that he didn’t attend a single day at university; he did not seek to explain his circumstances to the university; he didn’t report the theft of the $10,000.00 or the misappropriation of the $10,000.00 to police; and, what he did do was he began working in an Indian restaurant and certainly was not studying.

7. About 14 months later, in March 2016, he sought legal advice because he said that he wanted to study.  He said that he contacted a few lawyers and they told him that all he ever had to do was to sit an IELTS test in order to be enrolled in a course.  He said that another Punjabi migration agent told him not to study and to pay the agent $50,000.00 and that agent would arrange for a work visa instead. 

8. All of these tales that the Applicant told did change a number of times during the course of the hearing such to a point where the AAT really had no idea what it was that the Applicant was actually saying with regard to his true circumstances and the history of the matter.

9. The Applicant said that he would work in Australia, take a loan in India or ask his family to sell their land to pay for his tuition.  Whilst this aspect wasn’t totally before the Tribunal, the Tribunal was concerned that the Applicant didn’t have the means to meet the substantial tuition fees for the higher education course in Australia, which would also vitiate the visa. 

10. The AAT also had the concern that the Applicant didn’t have a desire to really undertake a higher education course in Australia and that the Applicant had been in Australia for two and a half years and still could not speak English in sufficient a way to be able to study a Bachelor of Business course.

11. The Applicant told the Tribunal that if his visa remained cancelled that he and his family would be very sad because he was expected to complete his course.  The Applicant submitted a letter from a medical professional that indicated that two days before the hearing the Applicant had reported to the doctor that he had been suffering from symptoms of adjustment disorder with depressed mood for some four months prior. 

12. Of course, such did not explain why the Applicant had not been enrolled in a course since November 2015 because, according to the medical certificate, he would not have been suffering from adjustment disorder and depressed mood until February 2017.

13. A very odd submission was made that someone in the Applicant’s position was more likely to breach the conditions of his visa because the Applicant was influenced by Indian and sub-continental community in Australia and that that community was a dishonest community and they had influenced the Applicant to seek to stay in Australia by dishonest means. The submission continued that if the Applicant had been Japanese, he wouldn’t face those problems because the Japanese community was honest.  Such a submission was properly rejected by the AAT.

14. The AAT came to the conclusion that it didn’t accept that the Applicant had large money taken from him when he arrived in Australia and that the Applicant has simply come here and not studied and tried to stay here for as long as he could. 

15. The Tribunal came to the conclusion that the Applicant’s lack of ability and desire and financial means to successfully undertake higher education course in Australia outweighed any hardship that he or the family members might face because of the cancellation of the visa and concluded that the visa should be cancelled. 

16. The Applicant came to this Court by filing an application on 24 October 2017.  The grounds of the application were:

    1. The Tribunal failed to act according to substantial justice and merits of the case, in breach of s353(B) of the Migration Act 1958 and/or failed to act in a way that is fair and just, in breach of s357A(3) of that Act.

    2. The tribunals reasoning is unfairly based on unsound reasoning.  The tribunal drew unreasonable inferences for example, that my symptoms of adjustment disorder with depressed mood was just another reason why I would be unable to study in Australia. The tribunal member failed to take into account my circumstances since arriving in Australia – including my experience of fraud and mental health.

17. The first ground has no substance to it because there is no evidence before me that the AAT failed to act in a way that is fair, just and in breach of s.357A of the Migration Act 1958 (Cth) (“the Act”). The Tribunal took into account all matters and acted in accordance with what it had to do. In the absence of any particulars that would enlighten what it is that is being complained about, I find that this ground fails.

18. The second ground is simply an attempt to engage in impermissible merits review. The example that the Applicant gives of the symptoms of adjustment disorder being another reason why the Applicant would be unable to study in Australia is not what the Tribunal said.

19. The Tribunal said that it took no account of that letter because the letter did not explain what the Applicant had been doing from November 2015 to February 2017. Therefore, I do not accept that there is any merit in that aspect.

20. The Tribunal member did take into account all of the Applicant’s circumstances but did not believe the Applicant that he had an experience of fraud.  The decision that the Tribunal made was one that was open to it on the evidence.

21. The Applicant did not appear and in all the circumstances, I am of the view that it is appropriate to deal with the matter according to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

22. I find that there is no jurisdictional error.  I therefore dismiss the application.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 23 October 2018