Adikari Mudiyanselage (Migration)

[2019] AATA 4317

Adikari Mudiyanselage (Migration) [2019] AATA 4317 (27 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sumudu Samudra Kumarihami Adhikaram Adikari Mudiyanselage

CASE NUMBER:  1803613

HOME AFFAIRS REFERENCE(S):           BCC2017/3097551

MEMBER:Michael Biviano

DATE:27 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 27 May 2019 at 9:05am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – family financial hardship – English test results – professional registration in Australia – decision under review set aside  

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 8 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that she was not enrolled in a registered course. 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 24 April 2019 to give evidence and present arguments. Prior to the hearing, the Tribunal received helpful submissions and supporting documents from the applicant.  

4. The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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 registered course, or in limited cases, a full time course of study or training: 8202(2);

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

9. The applicant arrived in Australia on 15 June 2015, after obtaining a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 5 June 2015 to study a Diploma of Nursing and a Bachelor of Nursing at Holmesglen Institute.

10. In December 2016, the applicant completed the Diploma of Nursing and was awarded a Diploma of Nursing (Enrolled Division 2 Nursing).The applicant gave evidence that she did not fail any subjects in that course and the Official Academic Transcript confirms that result.

11. In January 2017, the applicant enrolled in Bachelor of Nursing degree at Holmesglen Institute. The Bachelor of Nursing degree comprised 16 subjects, which were to be undertaken 4 subjects per semester for two semesters per year for two years. The tuition fee for each semester was $12,500, and the total cost of the degree over the two years was $50,000. The applicant gave evidence that her father and mother were paying for her considerable tuition costs.

12. The applicant gave evidence that:

    a.She commenced the Bachelor of Nursing degree in February 2017 and she had paid a deposit of $3,000 for the course;

    b.She completed seven weeks of the course, when she encountered difficulties with registration as her father was unable to pay tuition fees due to difficulties in having funds released due to his superannuation/retirement fund not making funds available to be drawn down in time to meet the tuition fees;

    c.In March 2017, Holmesglen Institute cancelled her enrolment for non-payment of tuition fees;

    d.At about this time there were further family emergencies at home that drained her parents’ financial resources, which resulted in them being unable to attend to payment of the tuition fees. Those matters included:

    i.Her sister had been bullied at her workplace resulting in her being sick and scarred psychologically and she required medical treatment which was at a cost of $3,000 to $4,000. A medical certificate from Dr Pabasari Ginige dated 25 August 2018, confirmed the hospitalisation of her sister;

    ii.In May 2017, her father contracted dengue fever, a potentially life-threatening condition back home in Sri Lanka. He was hospitalised in her hometown and then transferred to the Teaching Hospital in Kandy. He was admitted into the Intensive Care Unit for a few days and then remained in hospital until he was discharged. The medical expenses needed to be borne by her parents as there is no universal medical insurance coverage in Sri Lanka;

    iii.On the applicant’s father being discharged he returned home, but in June 2018, the applicant’s mother and sister contracted dengue fever and they were hospitalised at the Teaching Hospital in Kandy, again at expense to her parents. Diagnosis cards from Kandy Hospital were submitted to the Tribunal in relation to their medical condition, which confirmed that they had contracted dengue fever.

    e.Notwithstanding Holmesglen Institute cancelled her enrolment, the applicant continued attending the college and kept studying with the view of trying to have her enrolment reinstated and she completed 2/3 of her assignments, but in mid-April Holmesglen Institute closed the portal and shortly thereafter she ceased studies.

    f.As a consequence of her circumstances she felt as though she had failed and felt bad she could not help her family from Australia. She gave evidence she was depressed and she tendered medical evidence including a psychological report of Rosemary Williams, counselling psychologist, concluding that the applicant had sustained a major depressive disorder with mood-congruent psychotic features. The report concludes she was participating in twice weekly psychodynamic psychotherapy sessions and she was engaging in recovery from her psychotic depression.

    g.The applicant spoke with the counsellor at Holmesglen Institute who recommended that she apply to be enrolled in the Bachelor of Nursing degree commencing in January 2018 at Holmesglen Institute. 

    h.The applicant applied to undertake a Bachelor of Nursing at Holmesglen Institute Moorabbin commencing January 2018.

    i.The applicant received a letter of offer from Holmesglen Institute dated 9 November 2017 to undertake a Bachelor of Nursing at Holmesglen Institute, commencing 8 January 2018 and concluding 31 December 2019. The offer expired on 31 December 2017 and the applicant was required to provide an IELTS (International English Language Testing System) Score of 6.5 (academic) with 3 band scores no less than 6.5 and one band score no less than 6.0. The letter of offer was submitted to the Tribunal.

    j.The applicant had previously obtained an overall IELTS band score of 6.5 on her previous IELTS test on 13 December 2014. One of those band score results was less than 6.0. A copy of that test result was submitted to the Tribunal.

    k.The applicant was required to sit a new IELTS test and achieve the new minimum test score.

    l.The applicant sought to obtain a booking for a new IELTS test, but the earliest booking she could obtain was 6 January 2018, which was after the date the offer from Holmesglen expired.

    m.On 22 December 2017, the applicant attended Holmesglen Institute for the purposes of accepting the offer and seeking to pay her fees for the first semester. The applicant was told at Holmesglen Institute that they were unable to accept her enrolment and payment of fees because she did not have her IELTS test results.

    n.On 22 December 2017, the applicant sent an email to Dona Sullivan, Team Leader – Admissions International Centre at Holmesglen regarding what she should do as her letter of offer was expiring and the college would not let her enrol. A copy of the email was submitted into evidence.

    o.On 22 December 2017, Dona Sullivan, sent an email to the applicant confirming that Holmesglen Institute was unable to accept payment of fees and issue a Confirmation of Enrolment because:

    i.The applicant had not obtained an IELTS result and not met the condition in the offer; and

    ii.The Bachelor of Nursing course had reached its maximum capacity.

    A copy of the email was submitted into evidence.

    p.The applicant filed an application for review with the Ombudsman, which was refused.

    q.In late January 2018, the applicant applied for enrolment in the Bachelor of Nursing at Federation University Berwick but she did not obtain the offer.

    r.On 15 February 2018, Holmesglen Institute sent a letter to the applicant requesting her to complete her registration in Bachelor of Nursing, by which time her visa had been cancelled. A copy of the letter was submitted to the Tribunal.

13. The applicant conceded in evidence that she was not enrolled in a registered course after 22 March 2017 up until her visa was cancelled on 8 February 2018.

14. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between 22 March 2017 and 8 February 2018. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

15. 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 of Home Affairs’ Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    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

16. The applicant gave evidence that she came to Australia to study and undertake a Diploma of Nursing and Bachelor of Nursing.

17. As discussed above the applicant successfully completed a Diploma of Nursing but she was unable to complete first semester in the Bachelor of Nursing as her parents were unable to meet her tuition fees due to financial and serious health issues at home in Sri Lanka. The applicant has also gained registration in Australia as an enrolled nurse (division 2) with the Nursing and Midwifery Board of Australia and a copy of the registration for the period 5 February 2019 to 31 May 2019 was submitted to the Tribunal. The Tribunal accepts the applicant’s evidence as to the circumstances of her enrolment in the Bachelor of Nursing ceasing and her attempts to enrol the following year in the Bachelor of Nursing.

18. On the findings above, the Tribunal finds that the breach of condition 8202(2) was not her fault and occurred due to matters beyond her control.

19. The applicant has given evidence that if possible she intends to remain in Australia to fulfil her academic goals, undertake either a Bachelor Nursing, if she can enter the course or alternatively if she cannot gain enrolment in a Bachelor of Nursing, then to undertake a Bachelor of Community Service. On completing her degree, she intends to return to Sri Lanka and seek employment with UNESCO to work in medical programs and provide health care to the northern suburbs of Sri Lanka which are poor and require health care.

20. Having regard to the applicant’s evidence, the Tribunal accepts that the applicant has travelled to Australia intending to study and she intends to study in Australia in the future, and given her conduct in completing a Diploma of Nursing and obtaining her registration, the Tribunal gives this substantial weight towards the visa not being cancelled. 

    The extent of compliance with visa conditions

21. The applicant gave evidence that she was not enrolled in a course of study from between 22 March 2017 until the cancellation of the visa on 8 February 2018 being a period of some 10 months which was a substantial period of time. Therefore, the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for such a substantial duration of time may weigh towards the cancelling the visa unless the Tribunal accepts her reasons for non-enrolment.

22. The applicant in evidence gave a number of reasons why she was not enrolled, which was supported by documentation and those reasons are set out above. The Tribunal find that the circumstances which resulted in her not being enrolled, coupled with her medical problems and her attempts to gain enrolment were both compelling and convincing reasons as to why she was not enrolled in a course of study.

23. Other than the breach of condition 8202(2) the decision record of the delegate does not reveal any other breach of her visa conditions.

24. Notwithstanding the duration of the breach, having regard to the reasons for not being enrolled, the Tribunal gives this some weight towards the visa not being cancelled.

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

25. The Tribunal asked the applicant if she or other members would suffer hardship if the visa was cancelled. The applicant gave evidence that the visa cancellation would cause her hardship in that she would be unable to complete her Bachelor of Nursing in Australia and obtain the credits she would obtain from her Diploma of Nursing towards the bachelor degree. The effect is that if she sought to enrol in Bachelor of Nursing degree elsewhere she would be required to undertake a three year degree, rather than the two years it would take to complete a degree in Australia.

26. The Tribunal considers that the above matters give some weight towards the visa not being cancelled.

    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

27. The applicant gave evidence as to the circumstances that lead to the cancellation of the visa and the Tribunal has accepted the applicant’s evidence and accepts that the grounds for cancellation arose beyond her control.

28. The central purpose of the student visa is to study and for the 10 month period, the applicant was not enrolled. The applicant gave evidence that during the period of the visa cancellation she was unable to undertake formal study due to the restrictions on her bridging visa but she spent her time reading and watch documentaries, in support of her learning and studies. The Tribunal accepts the applicant’s evidence that she wishes to study, considering her previous conduct.

29. The Tribunal has considered the applicant’s explanations for why she was not enrolled for this substantial period and therefore in breach of condition 8202(2). The Tribunal accepts the circumstances were beyond her control and that the circumstances indicate reasonable explanations for not being enrolled for such a period of time. The Tribunal gives this matter significant weight towards the visa not being cancelled.

    Past and present behaviour of the visa holder towards the Department

30. According to the decision record, the applicant had responded to the Department’s notice of intention to consider the cancellation of the visa and both cooperated and communicated with the Department. The decision record of the Department does not reveal that there has been uncooperative behaviour towards the Department. The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

31. This matter is not relevant in this application and I give this factor no weight.

    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

32. The applicant gave evidence that if the visa remained cancelled she would return to Sri Lanka and work as an enrolled nurse. Therefore there is no indication that she would become unlawful or be subject to detention and I give this factor no weight.

    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

33. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled she would return to Sri Lanka and she did not give any reasons as to why she could not return to Sri Lanka and she has not made any claims that relate to this consideration. I give this factor no weight.

    If it’s a permanent visa, whether the visa holder has strong family, business or other ties in Australia

34. This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.

    Any other relevant matters

35. The applicant gave evidence that the health of her parents had improved considerably, as had their financial position and there was no impediment to studying and completing a Bachelor of Nursing in the future.

36. I also note the cost of such a degree is substantial – it costs approximately $50,000 – which is a substantial investment being made by the applicant and her family in her future. The Tribunal has had regard to these matters, but in light of the findings above it adds very little to her case and the Tribunal gives it very little weight to the visa not being cancelled.

37. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

38. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Michael Biviano
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.