Vallala (Migration)

[2020] AATA 3277

Vallala (Migration) [2020] AATA 3277 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Siddhartha Vallala

CASE NUMBER:  1935336

HOME AFFAIRS REFERENCE(S):          BCC2019/3388408

MEMBER:Amanda Upton

DATE:11 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 11 June 2020 at 11:08am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant ceased enrolment – applicant changed to Vocational course – applicant ceased relationship – unable to study at Masters level – financial loss – impact upon family – 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 10 December 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 had not complied with condition 8202(2)(a)&(b) in that he had not maintained enrolment in a registered course at the same level or higher than, the registered course in relation to which the 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.  The applicant appeared before the Tribunal on 11 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.

4.  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

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 1994 (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?

6.  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 full time registered course: 8202(2)(a)

·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

7.  In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course at the level for which the visa was granted.

8.  The applicant was granted a visa on 22 October 2018 for him to study a Master of Engineering. The enrolment in this course was cancelled on 22 March 2019 after the completion of the first semester, at the request of the applicant.

9.  The applicant subsequently on 30 April 2019 enrolled in a Diploma of Leadership and Management. This course is four levels below the course for which the visa was granted.

10.The applicant has not been enrolled in a registered course at the level for which the visa was granted for a period of approximately 10 months.

11.On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course at the same level or higher than, the registered course in relation to which the visa was granted. Accordingly, the applicant has not complied with condition 8202(2)(a).

Consideration of the discretion to cancel the visa

12.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’.

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

13.The applicant’s reason for the change in the level of his course was that he was unable to concentrate on his studies due to the breakup of his relationship with his girlfriend. They had been together for 1 ½ years and had been living together. The broke up in June 2019 however he could not concentrate on his studies in March as they started having trouble through March and the relationship finally broke down in June. The breakup occurred as they had irreconcilable differences due to religion and caste, she was not willing to be with him due to those.

14.The Tribunal asked the applicant if this was the only reason that he had lowered his course level and he said that it was. The Tribunal notes that the applicant enrolled in the Diploma level course in April 2019 and he gave evidence to the Tribunal that he has now finished that course. The course duration was from April 2019 to 1 May 2020.

15.  The applicant has not re-enrolled in the Masters course and now has no intention of doing so.

16.  He told the Tribunal that he is looking at doing some specialised courses like cooking and going into that field although he has previously obtained a Bachelor of Civil Engineering. He has no current enrolment in any course

17.The Tribunal does not consider that the circumstances under which the visa cancellation arose were out of the applicant’s control. The Tribunal does not consider that the circumstances under which the cancellation arose weigh in favour of not cancelling the visa.

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

18.The applicant’s initial purpose of travel to Australia was to complete his Master of Engineering.

19.  The applicant indicated that he has not re-enrolled in the Masters on completion of his Diploma study as he previously indicated to the Department that he might, as he wasn’t sure if he was eligible to enrol in a Masters anymore. The extent of his enquires with respect to this were that he asked his friends and they did not know about it.

20.  He has not made enquires with an education institution that offers a Masters and indicates that he now feels that he is not capable of studying at a Masters level.

21.The applicant claims that his purpose to remain in Australia is because of the sake of his parents. They have put a lot of effort into him staying here to study and if it were not for them he would have returned home.

22.  The Tribunal notes that the applicant has been enrolled in a course below the level of course for which his visa was granted for a significant period of time. He has no intention of returning to studies at a master level and has not made attempts to rectify the level of his visa. The Tribunal considers this to be an indication that the purpose of his stay is no longer in line with the original purpose for travel to Australia.

23.  The Tribunal gives this weight in favour of cancelling the visa.

The extent of compliance with visa conditions

24.The applicant has not studied at the level required by the visa for over 12 months. The course that he has been enrolled in is four levels below that for which he was given his visa. The Tribunal considers this to be significant.

25.The applicant has made no effort to attempt to remedy the breach of the conditions of his visa. He agrees that he knew that the vocational course was in breach of the visa after receipt of the Delegate’s decision, however did not make any efforts to rectify it as he was in depression and did not understand what was going on.

26.The Tribunal is unable to accept the applicant’s assertion that he was unable to take steps to enquire about or rectify the visa. The claim of depression is unsupported by evidence. The Tribunal notes that the applicant, on his evidence, was able to continue to study during the period which he claims he was unable to do anything about his visa

27.The Tribunal gives this consideration significant weight in favour of cancelling the visa.

Past and Present Behaviour of the applicant towards the Department.

28.There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

Whether there would be consequential cancellations under s. 140

29.There are no other people associated with the visa and as such the Tribunal affords this factor no consideration

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

30.The applicant claims that if the visa was to be cancelled it would be a big financial loss as he has paid a lot of money to be here.

31.He also states that emotionally his parents would be emotionally as his mother has had a heart attack before and they do not know about his break up with his girlfriend or anything that has happened here.

32.The applicant told the Tribunal that with respect to hardship, the only concerns are for his parents and for the money that has already been spent for him to be in Australia.

33.  The Tribunal accepts generally, that the cancellation of a visa results in opportunities lost and disappointment. It also accepts that there is potentially a financial loss for the applicant. The Tribunal considers that it is expected that there will be consequences to a visa cancellation and these are such consequences. As such the Tribunal gives minimal weight to these considerations raised by the applicant.

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

34.If the visa is cancelled, the applicant will become a non-lawful citizen and his ability to apply for other visas would be limited. Whilst unlikely in this instance, he could be detained until he made arrangements to leave the country.

35.The applicant would also be section 48 barred and may not meet the requirement for certain visas for three years.

36.The Tribunal sees these as natural consequences of the cancellation of a visa. The applicant retains his passport and is able to return to India. The applicant raised no reason that he would be unable to return to India other than being concerned about his parents.

37.The Tribunal gives this factor minimal weight in favour of the applicant.

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.

38.The applicant has provided no reasons for being unable to return to India as such the Tribunal affords this factor no weight.

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

DECISION

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

Amanda Upton
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.