Amarathunga (Migration)

[2019] AATA 4437

Amarathunga (Migration) [2019] AATA 4437 (16 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Chathuranga Jayanaka Sisara Amarathunga

CASE NUMBER:  1824678

HOME AFFAIRS REFERENCE(S):     BCC2018/1916706

MEMBERS:Dr Jason Harkess

DATE:16 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa

Statement made on 16 July 2019 at 11:36am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – non-payment of course fees – limited academic progress – applicant changed to diploma course – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 573.223, 573.231; Schedule 8 Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of Sri Lanka. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 23 August 2018 cancelling his Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 5 October 2016 with an original expiry date of 28 August 2018, providing for 22 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, a Bachelor of Finance course. 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 course of study that is a principal course of the Bachelor’s type.

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 on 10 July 2019 to give evidence and present arguments. He was assisted by his registered migration agent, Mr Suresh Wickramasinghe.

6. The Tribunal was assisted by an interpreter in the Sinhalese and English languages.

7. For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary Applicant has breached condition 8516 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8516?

1. Condition 8516 of the Applicant’s visa required that the Applicant continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. The relevant criteria pertaining to the Applicant’s student visa in this case can be found in clauses 573.231 and 573.223(1A) of Schedule 2 of the Migration Regulations 1994 (Cth), as they then applied. In summary, by the operation of those criteria as applied to this case, the Applicant was under a continuous obligation to remain enrolled in a Bachelor’s level course or higher for the entire duration of the visa.

2. In the delegate’s decision record, the delegate identified the period from 20 October 2017 to 23 August 2018 as the relevant period in which the Applicant was not enrolled a Bachelor’s level course. This amounted to 10 months during which the Applicant was in continuous breach of the visa.

3. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

   [1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

4. The PRISMS report obtained by the delegate indicated that the Applicant’s education provider, La Trobe University, had cancelled his enrolment in the Bachelor of Finance course on 20 October 2017 due to the non-payment of fees. At the date of the delegate’s decision, the Applicant had not been enrolled in any registered course of study since 20 October 2017.

5. The Department of Home Affairs wrote to the Applicant on 10 August 2018, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8516. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

6. The Applicant responded to the NOICC on 17 August 2018 (‘the NOICC response’). In that response, he implicitly conceded that he was in breach of his visa as had been alleged by the delegate. In his evidence before the Tribunal on 10 July 2019, the Applicant also admitted that he had been in breach of his student visa for the period alleged.

7. Based on the material available, the Tribunal is therefore satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8516 of the visa.

Consideration of the Discretion to Cancel the Visa

1. 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. The Applicant originally arrived in Australia on 1 February 2014, having been granted a Subclass 573 visa (‘the first student visa’) for the purposes of studying a Bachelor of International Business at La Trobe University (‘La Trobe’). That course was to take approximately two years to complete, with a course start date of 15 March 2014. The Applicant’s first student visa had an expiry date that coincided with the anticipated completion date of the Bachelor of International Business course. Before the course started, the Applicant changed his enrolment to a Bachelor of Finance course which was also being offered at La Trobe. That decision to change in no way gave rise to a breach of any condition of his first student visa.

3. The Applicant stated that he found studying the units in the Bachelor of Finance course very difficult. This would appear to be reflected in his academic transcript, a copy of which he produced to the Tribunal. That academic transcript details his performance at La Trobe from 2014 to 2016. In the first semester of 2014 he enrolled in four units within the Bachelor of Finance course. He passed two out of the four units. In the second semester of 2014 he enrolled in another four units. He failed all four of those units, with his highest mark being 31% and his lowest being 26%. In the first semester of 2015, he enrolled in another four units. He failed all four units again, with his highest score being 28% and his lowest being 24%.

4. As a result of La Trobe’s administration calling into question his ongoing academic performance, the Applicant was counselled and obliged to agree to a limited study plan. He was permitted to enrol in only one unit for the second semester of 2015. However, he failed that unit, achieving a score of only 35%. The Applicant did not undertake any studies at La Trobe in the first semester of 2016.

5. By this stage, the expiry date of the Applicant’s first student visa was looming. However, he had achieved virtually nothing by way of academic progress in completing the Bachelor of Finance degree. He applied for another student visa, which was granted. This second visa is the visa that was ultimately cancelled by the delegate, that decision to cancel now being the subject of review before the Tribunal. From the evidence, it is reasonably clear that the Applicant was granted a second student visa to enable him to make a further attempt to obtain an Australian bachelor’s degree in accordance with his original plan that he had in 2014.

6. In the second semester of 2016, the Applicant enrolled in another three units at La Trobe in the Bachelor of Finance course. He passed one of those, achieving a bare pass of 50%. The other two units he failed, the highest score being 10% and the lowest 8%. Those results represent another semester of very poor academic performance on the part of the Applicant.

7. The Applicant stated that in 2017 he enrolled for and paid half of the fees for the first semester of studies at La Trobe. However, he produced no evidence of this. There is also no evidence of any academic results or enrolments relating to any course attendances at La Trobe after 2016. The Tribunal is of the view that the Applicant did not make any further meaningful progress academically at La Trobe after semester 2 of 2016.  As the Applicant appeared to concede in his evidence, he spent more than $50,000 on course fees at La Trobe over a three year period since his arrival in Australia in 2014. Yet he has nothing by way of academic success to show for that money spent. The Applicant’s academic record ultimately reflects a consistently poor attitude that the Applicant has had towards his studies towards a Bachelor’s degree in Australia. It appears that he has not taken his responsibilities as a student visa holder seriously.

8. The Applicant has produced no evidence demonstrating any satisfactory attendances at La Trobe for the entire year of 2017. It seems that La Trobe administration staff gave the Applicant some leeway in terms of getting his studies back on track. La Trobe did not cancel his enrolment in the Bachelor’s course until 20 October 2017. The Tribunal considers that, in these circumstances, La Trobe is likely to have complied with all requirements to give the Applicant reasonable notice of his impending enrolment cancellation and probably engaged with the Applicant in order to avoid this course of action. However, it appears that the Applicant did not take reasonable steps to ameliorate the situation.

9. From 20 October 2017, the formal breach period of the applicant’s visa commenced. The Applicant stated that he subsequently took steps to re-enrol in another course. He enrolled in an Advanced Diploma of Accounting at Altec College which commenced on 2 April 2018. However, this is a lower level course than a Bachelor’s course. As such, it in no way cured the continuing breach of his visa. The fact that the Applicant produced evidence to the Tribunal, demonstrating that he had successfully completed two units in the Advanced Diploma course in the first half of 2018, must be given little weight. The visa he had been granted was for a higher level Bachelor’s course – not a lower level Advanced Diploma.

10. The Applicant produced evidence that he received a letter of offer from Elite College on 23 March 2018, to enrol him in a Bachelor of Business course that would commence 15 July 2019. This, it was suggested, would be a course he would commence following successful completion of the Advanced Diploma. However, these steps the Applicant has recently taken, in the Tribunals view, come far too late. Given the Applicant’s poor academic history, the Tribunal is of the view that the Applicant’s asserted commitment towards completing this Bachelor’s course is disingenuous. Even if the Applicant was genuinely intending to undertake this course, the academic history of the Applicant suggests that there is no reasonable prospect of him completing it. There is no point in allowing him to continue to hold a student visa in Australia for this purpose.

11. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education that will allow him to return to Sri Lanka with a Bachelor’s degree. He is recently married. His wife remains in Sri Lanka. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification in the nature of a Bachelor’s degree. He has expended time and financial resources in his time in Australia so far. The Tribunal accepts his evidence that he highly values the opportunity to obtain an Australian Bachelor’s qualification and that his family will be disappointed if he does not return with a Bachelor’s degree. However, that desire must be tempered with the extent of his non-compliance with the conditions of the visa. It was a student visa which obliged him to prioritise studying in a Bachelor’s course in Australia the entire time he has been here. In the Tribunal’s view, he has effectively squandered that opportunity. There is little point, given his academic history, in giving him another opportunity.

12. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

13. The Tribunal notes that if the visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Migration Act 1958 if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a 3 year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of visa conditions.

14. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow his to make arrangements for his to depart Australia. He is a citizen of Sri Lanka and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia. Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

15. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa.

Dr Jason Harkess
Member