Valukuri (Migration)

[2019] AATA 5616

Valukuri (Migration) [2019] AATA 5616 (16 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sai Charan Valukuri

CASE NUMBER:  1729195

HOME AFFAIRS REFERENCE(S):          BCC2017/3412619

MEMBER:Mark O'Loughlin

DATE:16 August 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 16 August 2019 at 11:57 am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education – Master of Technology – not enrolled in registered course for over 2 years – cultural, language and academic difficulties – applicant left Australia – applicant did not respond to letter from Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.40, cls 573.231, 573.223(1A), Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the visa holder was not enrolled in a course of study of a type specified by the Minister (in an instrument made under regulation 1.40A) for his Subclass TU-573 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.

3. 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

4. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

5. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that, subject to subsections (2) and (3) (which do not apply), the visa holder has not complied with a condition of the visa..

6. The applicant’s visa was subject to condition 8156 which required that the visa holder must continue to be a person who would satisfy the primary or secondary criteria. Included in the criteria for the applicant’s 573 visa are subclauses 573.231 and 573.223(1A).

7. The applicant was found to satisfy those criteria when he was granted his Student visa.

8. The Delegate found that the applicant’s enrolment in Master of Technology with Federation University ceased on 24 March 2017.

   In submissions dated 18 October 2017 the applicant, through his representative, acknowledged that the failure to remain enrolled represented a breach of condition 8516 but said that the breach was minor and the visa should not be cancelled.

9. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

10. 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’.

11. Movement records available to the Tribunal suggest that the applicant left Australia to return to India on 26 July 2019 and that the applicant’s Bridging visa did not appear to allow for his return and so it appears as though the applicant intends to stay in India.

12. The applicant was advised by letter delivered on 16 July 2019 that the Tribunal has this information and also advised that if it is relied on it would be the reason or part of the reason for affirming the decision under review. 

13. The applicant was invited to make comment within 14 days but did not do so.

14. The Tribunal finds that the applicant has no need to travel to Australia based on the fact that he has recently left.

15. The Tribunal observes that there is no evidence that the applicant has enrolled in any relevant course since 24 March 2017 and finds that the applicants breach of condition 8516 has lasted over 2 years and is significant.

16. There is no evidence available to the Tribunal that suggests any hardship that may be caused the applicant or anyone else by reason of the cancellation of the applicant’s visa.

17. As for the circumstances in which the grounds for cancellation arose, the applicant’s representative made submissions of 18 October 2017 (in response to a notice of intention to consider cancellation under s119 of the Act) that the applicant had difficulty with cultural, language and academic standards when studying the Masters course and his confidence was rocked so he changed to a less difficult course at Diploma level.

18. There is no other evidence of the difficulties faced by the applicant and the Tribunal is not satisfied that these problems did cause the applicant to breach condition 8516.

19. There is no evidence of past or present behaviour of the visa holder towards the department that would justify or tend to justify the cancellation of the visa.

20. There is no suggestion that cancellation of the visa would lead to consequential cancellations under s. 140 or, given that the applicant has already returned to India, that the applicant would be unlawful and liable to detention by reason of cancellation of the visa.

21. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean he will be restricted in lodging an application for another visa to Australia for 3 years after the cancellation of the Student visa.

22. There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.

23. The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.

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

    DECISION

25. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mark O'Loughlin
    Member