Veeramaneni (Migration) - [2023] AATA 1170

Veeramaneni (Migration) [2023] AATA 1170 (2 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anvesh Veeramaneni
REPRESENTATIVE:  Mr Imran Ali (MARN: 0959879)
CASE NUMBER:  2211129
HOME AFFAIRS REFERENCE(S):          BCC2022/1846799
MEMBER:Christine Kannis
DATE:2 May 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 02 May 2023 at 10:29am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a full-time registered course – gap in studies – impact of the COVID-19 pandemic travel restrictions – applicant stranded interstate – applicant changed courses – decision under review affirmed
LEGISLATION
Education Services for Overseas StudentsAct 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359, 362
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 29 July 2022 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 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The application for review was listed for hearing by MS Teams video on 2 May 2023. An Invitation to attend a hearing was sent to the applicant’s authorised representative on 13 April 2023. No response to the Invitation was received.
On 26 April 2023, the representative sent the following email to the Tribunal:
Reference to your phone call made on Monday the 24th Apr 2023, my office has tried reaching out to the applicant again but sadly there has been no contact. I am afraid that I will not be able to make myself available for the 2nd May 2023 hearing as I have no information from the applicant received until to date.
On 1 May 2023, the Tribunal sent the applicant a SMS hearing reminder to the mobile phone number he provided when lodging the application for review.
On 2 May 2023, the Tribunal attempted to contact the applicant on the mobile phone number he provided when lodging the application for review. The Tribunal attempted to call the applicant for a period of 20 minutes from the scheduled hearing time. The calls were not answered.
The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.
The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing.
The Tribunal proceeds to make a decision without taking any further…

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.

Continue reading Veeramaneni (Migration)

Details

AGLC: Veeramaneni (Migration) [2023] AATA 1170
Case: [2023] AATA 1170
Decision Date: 2 May 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Subclass 500 (Student) visa held by the applicant, Mr Veeramaneni. The dispute arose because the applicant was alleged to have breached condition 8202 of the Migration Regulations 1994 by not being enrolled in a full-time registered course.

The Tribunal was required to determine whether the applicant had complied with condition 8202, which mandates enrolment in a full-time registered course, maintaining enrolment at the same or higher Australian Qualifications Framework level, and achieving satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, despite the breach not triggering mandatory cancellation.

The Tribunal found that the applicant had breached condition 8202(2)(a) as the Provider Registration and International Students Management System (PRISMS) indicated no enrolment from 3 June 2021 to 5 July 2022. While acknowledging the applicant's explanation regarding the impact of COVID-19 travel restrictions, interstate lockdowns, and difficulties in re-enrolling due to college closures and admission requirements, the Tribunal concluded that these circumstances did not excuse the breach. The Tribunal noted that the applicant had eventually enrolled in a new course, but this did not negate the period of non-enrolment.

On balance, and after considering all the circumstances, the Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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 (Cth) (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? On 14 January 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached. 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)·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the course in relation to which the visa was granted: 8202(2)(b)·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). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2] [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act. The information from the PRISMS shows that the applicant has not been enrolled in a registered course from 3 June 2021 to 5 July 2022. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 3 June 2021 to 5 July 2022 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and 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.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

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 to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa 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’, as set out below. On 5 July 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 3 June 2021 to 5 July 2022 and had therefore failed to comply with condition 8202(2)(a) of his visa. Response to NOICC On 12 July 2022, the applicant responded to the NOICC and provided the following information: In November 2020, he had completed an Advanced Diploma of Leadership Management at Institute of Business and Management Australia (IBMA), Sydney. He then researched with a few professors and they gave suggestions to complete a Graduate Diploma of Management (Learning). He has taken admission in IBMA and completed a few subjects in seven months. Everyone knows that COVID impacts students to complete class online. His college also suggested he take online classes. In May 2021, he went to Melbourne for a few days to get out of this stress. Because anyway the college said classes will begin online only. After a week he tried to return to Sydney however the Victorian government announced a lockdown and said travel more than 10 kilometres was not permitted. He stayed in Melbourne and did online classes. He received a call from IBMA telling him to come and sign the attendance copy. He told IBMA he was in Melbourne and due to travel restrictions he could not travel to Sydney. However IBMA wanted him to attend immediately to sign the attendance form. IBMA denied access for his online class and told him to attend to sign the document. Without any intimation IBMA cancelled his CoE in June 2021. He tried to get admission in another college, but due to lockdown no college is active in taking new admissions. Many colleges were closed and they only took care of their existing students and not taking any new admissions. A professor suggested he complete a Diploma of Project Management from RTO College so he will get admission easily and can complete the course online. He decided to complete the course suggested and started a Diploma of Project Management in Victorian College of Vocational Excellence (RTO COLLEGE) online. This course had many basic level of study and made it easy to complete one by one subjects. So, he started to get admission from Level-1 Greenwich College. This college was ready to accept his admission in Diploma of Project Management but they told him that there was a condition for admission and that was that he should have completed any degree recently or else with ILETS. He started looking to book ILETS but the dates were so long. Later, he asked his professor for suggestions and was told to complete the existing course which he was doing from RTO College as it can be useful to get admission in Greenwich College. Then he completed his course in RTO college on 12 May 2022 and he was admitted into Greenwich College on 22 May 2022. He has taken the admission in Greenwich College because it is level 1 college and has good staff and course which he has taken from this college was Diploma of Project Management. Because he already learned basic concepts from his recent completion of course in RTO College. This makes him complete his degree in Diploma of Project Management in Greenwich College. He asks for a chance to complete his course which will help him to boost his father’s business in India. After completion of this course from Greenwich College he will leave to his home country to look after his father business.