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

1. 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).

2. 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.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing.

10. The Tribunal proceeds to make a decision without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under s.362B of the Act.

11. 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

12. 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?

13. On 14 January 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

14. 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).

15. 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.

16. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.

17. 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.

18. 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.

19. 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.

20. 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

21. 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.

22. 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

23. 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.

24. At the time of responding to the NOICC the applicant provided copies of Institute of Business and Management Australia certificate dated 16 October 2020 for Advanced Diploma of Leadership Management, Victorian College of Vocation Excellence certificate dated 12 May 2022 for Diploma of Project Management, Greenwich Management College Letter of Offer and Course Acceptance Agreement dated 22 May 2022 and CoE created on 5 July 2022 for the Diploma of Project Management course with a commencement date 5 September 2022 and an end date 1 September 2023.

25. As the applicant failed to attend the hearing the Tribunal has considered the evidence provided in the delegate’s decision and in the applicant’s response to the NOICC against each of the matters in PAM3 as referred to above.

26. The Tribunal has found that the applicant breached condition 8202(2)(a) of his visa because PRISMS shows he was not enrolled in a full-time registered course from 3 June 2021 to 5 July 2022. The Tribunal noted that the primary Decision Record, which was submitted with the review application by the applicant fell within the exceptions of s.359A (under s.359A(4)(b)) and contained this information. The Tribunal was therefore of the view that in this instance there is no obligation for it to put that information to the applicant in accordance with ss.359A or 359AA of the Act.

    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

27. The purpose of his visa was to enable the applicant to study. At the time the NOICC was issued the applicant had not been enrolled in a registered course for 13 months.

28. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

29. As the applicant failed to attend the hearing, there was no evidence before the Tribunal as to whether there was a compelling need for him to remain in Australia.  

30. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

31. The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 3 June 2021 to 5 July 2022.  His Diploma of Project Management certificate dated 12 May 2022 was completed on the basis of Recognition of prior learning and therefore the applicant was not enrolled or studying at that time. The Greenwich Management College Letter of Offer and Course Acceptance Agreement dated 22 May 2022 is not evidence of enrolment.

32. There is no evidence before the Tribunal that  he has not complied with the other conditions attached to his visa.

33. The applicant’s non-compliance for an extended period of 13 months prior to the NOICC weighs in favour of visa cancellation.

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

34. In his response to the NOICC the applicant said he wanted to complete his course to help to boost his father’s business in India. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to him in that he will not be able to complete his course. The Tribunal gives this some weight against cancellation.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

35. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant said he was unable to maintain enrolment because he was unable to return to Sydney to sign a form IBMA required him to sign. He said he was unable to leave Melbourne due to COVID-19 travel restrictions.

36. The applicant was not enrolled in a full-time registered course for 13 months. There was no evidence before the Tribunal to indicate the period of time that the applicant was prevented from travelling from Melbourne to Sydney however the delegate noted that the applicant’s enrolment was cancelled in June 2021, a significant period of time after the Stage 3 restrictions began in Victoria in March 2020. In addition, COVID-19 resulted in a move to online classes across the whole of Australia and there was no evidence before the Tribunal that IBMA required the applicant to personally attend in Sydney to sign a form.

37. In his response to the NOICC the applicant stated that following cancellation of his enrolment he made many attempts to enrol in study however many education providers were closed due to COVID-19 restrictions and were not accepting new admissions. The Tribunal notes that the applicant obtained CoEs on 5 July 2022, which was the day he was sent the NOICC. Therefore, he was able to enrol without delay.

38. The Tribunal notes that even if the applicant was required to personally attend in Sydney to sign a form, and even if he had difficulty enrolling after cancellation of his enrolment, he was not enrolled for an extended period of 13 months and would have been aware that he was not studying and was therefore not complying with a condition of his student visa. There is no indication that the applicant contacted the Department when his enrolment circumstances changed.  It is the responsibility of all visa holders to be aware of the conditions and what they must do to remain compliant with them.  

39. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the Department

40. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

    Whether there would be consequential cancellations under s 140

41. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

    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

42. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

    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

43. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

    Any other relevant matters

44. The Tribunal is not aware of any other considerations in relation to the cancellation.

    Conclusion

45. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as  he is not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

46. 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

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

    Christine Kannis
    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.