VATTIKUNTA (Migration) - [2019] AATA 6528

VATTIKUNTA (Migration) [2019] AATA 6528 (18 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr ASHOK BABU VATTIKUNTA
CASE NUMBER:  1907092
HOME AFFAIRS REFERENCE(S):         BCC2018/5357532
MEMBER:Dominic Triaca
DATE:18 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 18 November 2019 at 11:53am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – limited academic progress – financial hardship – retained employment in Australia – career transition plans – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2; Schedule 8; Condition 8202
CASES
Boettcher v Driscoll (2014) SASC 86
Dimic v Djekovic (2014) NSWSC 1502
Paduano v Minister for Immigration and Multicultural Affairs (2005) 143 FCR 204
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.The Applicant is a citizen of India.This is an application for review of a decision dated 14 March 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 Applicant’s student visa was granted on 9 March 2017 with an original expiry date of 15 March 2019, providing for 2 years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.
3.The visa had originally been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, a Masters in Project Management at Central Queensland University, located in Sydney NSW. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to maintain enrolment in a registered course of study.
4.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
5.The Applicant appeared before the Tribunal at a hearing convened on 18 November 2019 to give evidence and present arguments.
6.For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE
7.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?
8.Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 8 March 2018 to 14 March 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to approximately 12 months during which the Applicant was in continuous breach of the visa.
9.The delegate’s finding in this respect was based on a report which the delegate had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: VATTIKUNTA (Migration) [2019] AATA 6528
Case: [2019] AATA 6528
Decision Date: 18 November 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Vattikunta, who sought review of a decision to cancel their Subclass 500 (Student) visa. The cancellation was based on the applicant ceasing enrolment in a registered course and failing to maintain satisfactory academic progress, as required by the conditions of their visa. The applicant also raised grounds of financial hardship, continued employment in Australia, and plans for career transition as reasons for the visa to be reinstated.

The primary legal issue before the Tribunal was whether the applicant had demonstrated sufficient compelling and compassionate reasons to warrant the setting aside of the delegate's decision to cancel their visa. This required the Tribunal to assess the applicant's circumstances against the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), particularly those relating to student visa conditions and the discretion to waive cancellation.

The Tribunal acknowledged the applicant's stated financial difficulties and career aspirations. However, it found that the applicant had not provided sufficient evidence to establish that their circumstances were so compelling or compassionate as to outweigh the public interest in maintaining the integrity of the student visa program. The Tribunal noted that the applicant's failure to maintain enrolment and satisfactory academic progress were significant breaches of visa conditions. The Tribunal ultimately affirmed the delegate's decision to cancel the visa.

Orders