Benthara Hettiarachchige (Migration)

[2018] AATA 5961

Benthara Hettiarachchige (Migration) [2018] AATA 5961 (24 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dasun Sudara Alwis Benthara Hettiarachchige

CASE NUMBER:  1609496

DIBP REFERENCE(S):  bcc2015/2616873

MEMBER:Michael Ison

DATE:24 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 24 August 2018 at 2:43pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training) – genuine temporary stay – circumstances in home country and Australia – incentives to return or stay – past, present and future study and employment objectives – multiple courses at different levels in different subject areas – non-completion of courses – breakdown of marriage and loss of contact with children – new relationship, relocation and enrolment in new course – use of visas to maintain residency – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 572.223(1)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is Mr Dasun Sudara Alwis Benthara Hettiarachchige, who prefers to be referred to as Mr Dasun Alwis for the purpose of this application.

3. Mr Alwis applied to the Department of Immigration (as it was then known) for the visa on 8 September 2015. The delegate decided to refuse to grant the visa on 10 June 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

4. The delegate refused to grant the visa because the delegate formed the view that Mr Alwis does not intend genuinely to stay in Australia temporarily and therefore did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations. The delegate concluded that Mr Alwis had an extremely low course completion record, had not established the value of his proposed further studies to his future, only completed inexpensive courses at the Vocational Education and Training sector level, did not have meaningful incentive to return to Sri Lanka and was using the Student visa program to maintain residency in Australia rather than due to a genuine interest in study and academic progress.

5. The Tribunal wrote to Mr Alwis on 27 October 2017 requesting he provide the following information at least one week prior to the hearing:

   ·A copy of a current Certificate of Enrolment;

   ·Documents that showed Mr Alwis was currently enrolled in a course or has an offer of enrolment;

   ·Documents that show past studies in Australia, attendance certificates, academic transcripts and certificates of completion; and

   ·An explanation of any gaps in enrolments and relevant documentary evidence.

6. The applicant, through his lawyers, complied in part with the Tribunal’s request by providing a written submission dated 16 November 2017[1]. Importantly, the submission did not provide any documents proving the completion of Mr Alwis’ past studies, his academic transcripts or attendance records.

   [1] Tribunal file, folios 41 to 53.

7. Mr Alwis appeared before the Tribunal on 20 November 2017 to give evidence and present arguments.

8. Mr Alwis was represented in relation to the review by his registered migration agent, Mr Don Katugampala of Fairfields Lawyers. Mr Katugampala attended the Tribunal hearing.

9. Mr Alwis handed the Tribunal a number of additional documents at the hearing, including his current confirmation of enrolment and some medical records.[2]

   [2] Tribunal file, folios 58 to 62.

10. The Tribunal wrote to Mr Alwis after the hearing, through his lawyers, seeking further explanation of Mr Alwis’ academic history in Australia.

11. On 4 December 2017, Mr Alwis’ lawyers responded to the Tribunal providing a detailed submission about Mr Alwis’ academic history in Australia, his employment history and family situation with supporting documentation including an offer of enrolment in a package of courses leading to a Bachelor of Business degree, due to be completed by 31 December 2020.

12. On 7 February 2018, Mr Alwis’ lawyers wrote to the Tribunal to advise that Mr Alwis has moved to Tasmania to be with a new partner and has transferred his studies there by enrolling in a Certificate IV in Hospitality, which is due to be completed on 3 March 2019.

13. Mr Alwis’ lawyers advised the Tribunal:

    The applicant has recently entered into a new romantic relationship with a girl who is currently residing in Tasmania. Given the turbulent relationship the applicant had with his former partner, the applicant has decided that it would be best for his mental and emotional health to relocate to Tasmania to live with his new partner.

    Given the applicant’s relocation to Tasmania, he decided that it would also be best for him to continue his studies in Tasmania. As such, he has changed his course provider to Clinton Education Pty Ltd, trading as Clinton Institute, located in Hobart. The applicant has continued his studies in the Hospitality field.[3]

    [3] Tribunal file, folio 99.

14. Whilst this may cause some delay in the completion of Mr Alwis’ studies, the Tribunal views this as a positive development as it shows Mr Alwis is currently in a more stable domestic environment than his evidence indicated at the time of hearing and that he has remained committed to his studies by transferring them to Tasmania.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. Having regard to Mr Alwis’ current proposed course of study, the relevant subclass in this case is Subclass 572 Vocational Education and Training sector.

17. The issue in the present case is whether Mr Alwis meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)…

18. In considering whether Mr Alwis satisfies this criterion, the Tribunal must have regard to Direction 53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to all of the applicant’s circumstances, including:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

19. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    Applicant’s circumstances in their home country

20. Mr Alwis is 34 years old and from Sri Lanka. His parents remain in Sri Lanka where Mr Alwis says they have a successful coconut and paper agriculture business.

21. Mr Alwis is married but separated from his wife. They have two young children who live with Mr Alwis’ wife. At the time of hearing, Mr Alwis had not had any communication with his wife or children for over two years.

22. Mr Alwis has a younger brother who at the time of hearing was studying commercial cookery in Melbourne.

23. Mr Alwis’ parents provided financial assurance for his study in Australia.

24. Mr Alwis finished high school in Sri Lanka and then worked in the financial sector, in several banks, before coming to Australia to study.

25. Mr Alwis told the Tribunal his father was disappointed he did not go to university from high school and his parents expectations of him studying in Australia is that he will return to Sri Lanka with a degree. Mr Alwis said this matters a lot to him as his parents already disagreed with his decision to marry his wife and when he went against their wishes it affected them a lot.

26. Mr Alwis also told the Tribunal that he cannot study in the hospitality field at a bachelor degree level in Sri Lanka. He stated in written submissions he is also studying in Australia to improve his English and obtain international hospitality skills which he believes will improve his employment prospects in Sri Lanka. The Tribunal accepts this evidence.

27. Mr Alwis’ evidence to the Tribunal was that his parents are financially successful and that he has a comfortable standard of living in Sri Lanka. The Tribunal accepts this evidence and finds that it would act as some, although not a strong, incentive for Mr Alwis to return to Sri Lanka.

28. There is no evidence before the Tribunal of Mr Alwis having any military service commitments in Sri Lanka or of there being any political or civil unrest in Sri Lanka that would provide disincentives for Mr Alwis to return to Sri Lanka and the Tribunal makes no findings in relation to these considerations.

29. The Tribunal was not convinced that Mr Alwis, when considering his circumstances overall, has a strong incentive to return to Sri Lanka. Mr Alwis believes his wife and children are in Australia, although at the time of hearing he had not had any contact with them for over two years to confirm this, and this appeared to the Tribunal based on Mr Alwis’ oral evidence to be a very strong motivator for him to remain in Australia.

30. Mr Alwis gave evidence to the Tribunal that he misses his children a lot and plans to re-establish contact with his children and intends to divorce his wife. Mr Alwis told the Tribunal that if he has to go back to Sri Lanka now he will not get to see his children. He also told the Tribunal his wife’s family are back in Sri Lanka but he does not know what her plans are.

31. Mr Katugampala also made a similar submission on Mr Alwis’ behalf. Mr Katugampala submitted that if Mr Alwis was refused a Student visa he would have to return to Sri Lanka as he cannot obtain a second Subclass 485 visa, which would in turn affect his “visitation rights”.

32. The Tribunal finds that Mr Alwis has considerable incentive to remain in Australia to try and re-establish contact and a relationship with his children and that this incentive outweighs any incentive he has to return to Sri Lanka. This means that Mr Alwis has considerable incentive to maintain enrolment as a student in Australia not for the purpose of progressing academically but to maintain residency in Australia to further his plan to re-establish his relationship with his children. This causes the Tribunal to doubt whether Mr Alwis is a genuine applicant for temporary entry and stay in Australia as a student.

    Applicant’s circumstances in Australia including the applicant’s study plan and study history

33. Mr Alwis arrived in Australia in September 2007 having been granted a Student (Temporary) (Class TU)(Subclass 573 Higher Education sector) visa. His original intention was to study accounting at degree level so that he could obtain a higher paid position in a bank.

34. Mr Alwis gave evidence and submitted that he has completed the following courses:

    32.1Diploma of Accounting – 2 February 2009 to 30 June 2009;

    32.2Certificate III in Automotive Mechanical Technology – 21 December 2010 to 28 February 2011;

    32.3     Diploma of Business Management – 1 February 2011 to 10 June 2011;

    32.4     Diploma of Business – 11 June 2011 to 19 December 2011;

    32.5     Certificate III in Commercial Cookery – completed September 2015.

35. Mr Alwis did not provide final certificates to confirm he had been awarded the above Diplomas and Certificates, despite being requested by the Tribunal to do so.

36. Mr Alwis has now moved his studies to Tasmania. For the reasons noted above the Tribunal does not make any adverse findings in relation to this recent development and views the move and the reasons for it as potentially positive developments for Mr Alwis’ progress as a student in Australia.

37. The Tribunal informed Mr Alwis about his Provider Registration and International Student Management System (PRISMS) record during the hearing in accordance with s.359AA of the Act. The Tribunal told Mr Alwis what PRISMS was, how the information in his report was compiled, that it showed he had completed five courses and had enrolments in a further six courses cancelled in his over 10 years in Australia which could indicate to the Tribunal that he was studying to maintain residence in Australia rather than to progress academically and return home. The Tribunal explained this information was relevant to Mr Alwis’ application because it could show he was not in Australia to stay temporarily as a student. The Tribunal further explained the consequence of the Tribunal relying on that information was that the information would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review.

38. The Tribunal offered Mr Alwis an adjournment to consider his PRISMS information before Mr Alwis responded to or commented upon that information.

39. In response to the Tribunal’s disclosure of potentially adverse information under s.359AA, Mr Alwis gave evidence that he originally enrolled in a package of courses leading to a Bachelor of Accounting. He only completed the Diploma of Accounting.

40. Mr Alwis then had a dispute with his education provider about how he could progress his studies from the Diploma to Advanced Diploma. In short, Mr Alwis through his oral evidence and written submissions says the provider told him if he paid his course fees in full he could progress even if he failed some subjects, as he had witnessed may of his classmates progress, but when he did fail some subjects for his Diploma, the provider then said he had to complete those subjects before progressing to the Advanced Diploma causing a dispute over fees and the earlier advice.[4] Mr Alwis says this inconsistent advice and dispute caused him extreme stress and confusion, leading to depression. After the hearing, he provided a copy of a letter from a psychologist dated 30 April 2009 referring Mr Alwis to a general practitioner he had seen before. He completed his Diploma of Accounting but then ceased his accounting studies. The letter from the psychologist states in part:

    His status as a student is at risk, he believes. He’s sent his wife home to Sri Lanka to get a student visa so they can stay here.[5]

    [4] Tribunal file, folio 90 (back).

    [5] Tribunal file, folio 92.

41. In early 2010 Mr Alwis enrolled in a package of courses including a Certificate III in Automotive Mechanical Technology, a Diploma of Business Management and a Diploma of Business, all of which he successfully completed.

42. Mr Alwis was subsequently granted a Temporary Graduate visa (Subclass 485) in January 2013. He gave evidence that he worked full time work in a mechanical workshop to pay for medical costs and the cost of sending his wife and elder son back to Sri Lanka during his wife’s pregnancy with their second child, who was born on 2 January 2013. He subsequently paid for their return. He told the Tribunal these expenses meant he only worked and could not study during his 485 visa.

43. Mr Alwis then enrolled in a Certificate IV in Automotive Mechanical Diagnosis with the course to run from July 2014 to November 2014 and a Diploma of Automotive Technology with the course to run from November 2014 to July 2015.

44. During 2014 Mr Alwis sustained a back injury which he says prevented him from continuing to work as a motor mechanic and he cancelled his automotive studies. Mr Alwis provided documents showing he visited a doctor and was prescribed anti-inflammatory medication for ‘chronic back ache’[6] on 19 September 2014.

    [6] Tribunal file, folios 59 to 62.

45. Mr Alwis then decided to change his career to commercial cookery as he says it involved less bending and heavy lifting and provided a new career opportunity in Sri Lanka.

46. Mr Alwis obtained voluntary work as a kitchen hand for six months at a restaurant and winery where, according to his representative, he “… accumulated intricate hospitality skills…”.[7]

    [7] Tribunal file, folio 89 (back).

47. Mr Alwis says he then enrolled in a Certificate III in Commercial Cookery. Mr Alwis did not provide any documentation confirming he had completed the Certificate III, which he has submitted he completed in September 2015. The Department’s file includes copies of confirmations of enrolment in the Certificate III, in a Certificate IV in Commercial Cookery and in a Diploma of Hospitality with those courses to run from November 2014 to November 2016.

48. Mr Alwis gave evidence that he discovered his wife was having an affair with a boarder at their house leading to his wife, children and the boarder moving out of the house in March 2015. Around this time the police obtained an interim and on 10 July 2015 a final family violence intervention order against Mr Alwis ordering him not to contact or approach his wife and children for 12 months. A copy of this order was provided to the Tribunal.[8]

    [8] Tribunal file, folios 45 to 47.

49. In August 2015 Mr Alwis was charged with criminal offences as a result of a confrontation he had with his former boarder at a shopping centre in June 2015 and damage he was alleged to have subsequently caused to the boarder’s car and house. A copy of Victoria Police’s preliminary brief and criminal charge sheets, which included a summary of the circumstances of the charges, was on the Department’s file for Mr Alwis’ visa application.[9] The Tribunal is not aware of the outcome of these criminal charges and makes no adverse findings in relation to them against Mr Alwis, although it appears from Mr Alwis’ own statement that there was a plea or finding of guilt and he was placed on a community corrections order.

    [9] Department file, folios 64 to 67.

50. In an undated submission provided to the Tribunal on 16 November 2017 Mr Alwis stated:

    I had to seek psychological aid to recover from depression, anxiety and insomnia during this period of time and even had to take medication which did not work for me. I also dealt with a community correction order and received counselling to assist with my mental status. I am still going through a very difficult time as I still have not had a chance to see my children but I am learning to take one step at a time towards resolving my problems so that I am dealing with it positively.

    Somehow, I managed to complete certificate III in commercial cookery but could not continue from there as, until now, I was fighting to overcome the consequences of one extremely disturbing phase of my life.[10]

    [10] Tribunal file, folio 50.

1. Mr Alwis provided documentation to show that he had undertaken counselling courses with Relationships Australia, Victoria,[11] Delba Counselling and Consulting Services,[12] and SalvoCare Eastern.[13] The Tribunal also has a letter of referral from a general practitioner to a psychiatrist dated 15 March 2015[14] but no documentation or evidence to confirm that Mr Alwis actually saw the psychiatrist. Mr Alwis did not provide any medical or other documentation to support his assertion of being depressed, anxious or suffering insomnia, or as evidence of being prescribed medication that may commonly be associated with treating such conditions.

   [11] Tribunal file, folio 52. Mr Alwis attended 12 sessions of the Men’s Behaviour Change Group program, which aims to help men stop violent and controlling behaviours. The sessions were attended between 9 February 2016 and 10 May 2016.

   [12] Tribunal file, folio 51. Mr Alwis attended between March and July 2016 for psychotherapy and counselling for relationship issues, anxiety and depression.

   [13] Tribunal file, folio 48. Mr Alwis attended four sessions between 24 July 2015 and 8 September 2015 completing several modules of the Salvation Army’s Lifeskills Program.

   [14] Tribunal file, folio 13.

2. In October 2017 Mr Alwis enrolled in a Certificate IV in Commercial Cookery, which was due to commence on the day of the Tribunal hearing. A copy of his confirmation of enrolment was provided to the Tribunal.[15]

   [15] Tribunal file, folio 58.

3. After the hearing, Mr Alwis forwarded to the Tribunal a copy of an offer of enrolment for a Bachelor of Tourism and Hospitality Management course obtained on 27 November 2017. That degree course starts on 16 July 2018 and concludes on 6 November 2020.

4. Mr Alwis has completed approximately four years of study in his, at the time of hearing, 10 years in Australia. As noted above, Mr Alwis held a 485 visa for 18 months, so excluding this period there has been approximately over four and a half years at the time of hearing, and now over five years at the time of this decision, where Mr Alwis has not completed any course.

5. In particular, Mr Alwis does not appear to have completed any course since September 2015 and in over ten years has not completed any study above the relatively inexpensive Vocational Education and Training sector level, despite Mr Alwis’ evidence that it is his parents’ clear expectation that he return to Sri Lanka with an Australian degree.

6. Mr Alwis’ lawyers submitted in their submission dated 14 November 2017:

   The applicant was unaware until he attended our office in around August 2017 for advice that despite the refuse of the student visa he was permitted to enroll in his studies. The applicant has recently resumed his enrollment, evidence of which will be provided on the day of the hearing. (sic)[16]

   [16] Tribunal file, folio 42 (back).

7. The Tribunal gives this submission little weight. Mr Alwis’ evidence at the hearing and in his own statement was that his marriage breakup and separation from his children left him in a state where he could not study. He did not give any oral evidence to the effect that he thought he could not study after his visa application was refused. There is also no mention of this misunderstanding in his undated statement sent to the Tribunal on 16 November 2017. 

8. Mr Alwis has changed career direction twice whilst in Australia. He initially studied accounting which was consistent with his work history in Sri Lanka, then switched to automotive studies and following an injury then switched to cooking and hospitality studies.

9. Mr Alwis has explained what caused him to change career direction and studies twice whilst he has been in Australia.

10. When the Tribunal asked Mr Alwis why he chose automotive he replied that he always liked cars.

11. When the Tribunal asked why he had chosen cooking and hospitality he replied that tourism is booming in Sri Lanka, he was influenced by his younger brother who at the time of hearing was also studying commercial cookery in Melbourne and believed with a degree, rather than just diploma, he could get a good job in management in a reputable hotel chain in Sri Lanka and then eventually open his own restaurant in Sri Lanka with his brother.

12. In an undated submission the Tribunal received on the day of the hearing, Mr Alwis stated:

    Australia would also give me the opportunity to learn about and learn with the wider range of international skills, which again, would make me highlighted in the work environment in Sri Lanka. As now, Tourism and Hotel Management is becoming one of the leading industries in Sri Lanka, I truly believe that I would be able to contribute with my best in countries economic growth with my international experiences. (sic)[17]    

    [17] Tribunal file, folio 50 (back).

13. Mr Alwis told the Tribunal his current plan is to complete his Certificate IV in Commercial Cookery and then complete a Bachelor of Business and then return to Sri Lanka in 2020 to establish a chain of restaurants with his brother.

14. The Tribunal finds that Mr Alwis’ actions and academic history in Australia are not those of an applicant who is a genuine applicant for temporary entry and stay in Australia as a student. His low level of study and poor course completion rate caused the Tribunal to doubt whether Mr Alwis is a genuine applicant for entry and stay as student.

15. Mr Alwis has not completed any courses for nearly three years now and it will now take him, in the ordinary course of events including assuming he completes his current course, until at least March 2021 before he obtains his stated aim of being awarded an Australian bachelor degree and therefore feels he can return to Sri Lanka. At that point in time, Mr Alwis will have been in Australia for approximately 13 ½ years and will be 37 years of age.

16. The Tribunal could only give very limited weight to the medical evidence provided by Mr Alwis in relation to his alleged back injury that caused him to change career from automotive to commercial cookery. The written evidence provided by Mr Alwis showed only that he was prescribed a short course of anti-inflammatories.

17. The Tribunal was not convinced by Mr Alwis’s oral evidence as to the cause, nature or effect of his back injury. The Tribunal questioned Mr Alwis about how he would manage his back injury working in a kitchen where presumably he would have to stand for long periods. The Tribunal notes the delegate raised similar concerns in their decision dated 10 June 2016, a copy of which was provided to the Tribunal by Mr Alwis:

    … I find it implausible that you would seek enrolment in a field such as commercial cookery which also requires a high level of physical exertion if you are suffering from a medical condition to the extent to which you claim.[18]

    [18] Tribunal file, folio 1.

18. Mr Alwis’ response to the Tribunal’s questions was that working in a kitchen would be much easier than working as a mechanic because it would not require as much lifting. The Tribunal did not find Mr Alwis’ explanation very credible or convincing.

19. Similarly, the Tribunal could only give very limited weight to the medical evidence provided by Mr Alwis in relation to his alleged stress and depression that negatively impacted his ability to study prior to and since the completion of his last course in September 2015.

20. There is no written evidence before the Tribunal formally diagnosing Mr Alwis, describing his symptoms or their impact on his day-to-day functioning or of Mr Alwis receiving any ongoing medical care or any medication for his alleged conditions at all.

21. The Tribunal accepts that the breakdown of Mr Alwis’ marriage and his separation from his children since approximately March 2015 has had a significant and ongoing impact on Mr Alwis and his ability to study. However, Mr Alwis appeared well aware that his visa only permitted him to remain in Australia to study and it is not apparent on the evidence before the Tribunal that he was motivated to seek medical care either in Australia or back in Sri Lanka that may have assisted him to recover from his marriage breakdown and return to study as quickly as possible.

22. Mr Alwis appears well established and very settled in Australia having been in Australia, for nearly 10 years now.

23. The Tribunal accepts that Mr Alwis has a very detailed knowledge of living and studying in Australia but his academic record in Australia is poor and this causes the Tribunal concern that Mr Alwis will not go on to complete his proposed bachelor degree and then return to Sri Lanka, although the Tribunal does not make any specific findings in this regard.

24. The Tribunal found Mr Alwis’ future plans to be very broad and not supported by any research that was brought to attention the Tribunal.

25. The Tribunal finds that Mr Alwis’ ties to Australia with his children being here, when considered in the context of his poor academic history including studying only at the Vocational Education and Training sector level, leads the Tribunal to find that Mr Alwis is using the student visa program not to progress academically but to maintain ongoing residence in Australia.

26. The Tribunal accepts that Mr Alwis’ current course, a Certificate IV in Hospitality, and his proposed future course, a Bachelor of Tourism and Hospitality Management course, will be of value to his future back in Sri Lanka as those qualifications and the skills Mr Alwis gains will assist him to gain employment and potentially higher remuneration in Sri Lanka, particularly if he initially seeks work in hotel management.

27. The Tribunal does not have any information before it about any income Mr Alwis has earned in his time in Australia or could earn if he completed his course compared to what he could earn in Sri Lanka. The Tribunal makes no adverse findings against Mr Alwis in this regard.

    Applicant’s immigration history

28. Since arriving in Australia on 26 September 2007 Mr Alwis has returned to Sri Lanka twice. He returned on 15 December 2010 for just under two months and then also returned for a week from 19 March 2017.

29. In their submission to the Tribunal dated 4 December 2017, Mr Alwis’ representative submitted on his behalf that:

    The applicant has only returned to Sri Lanka one since first arriving to Australia, that is around December 2010 until February 2011. He stayed with his immediate family for approximately two months, together with his former wife and firstborn child. The applicant’s mother visited the applicant on 13 March 2011. She stayed in the applicant’s house with his family for approximately two months.

    … The applicant has not returned to Sri Lanka since then due to circumstances that were not in his control, mainly due to his family law issues, his study enrolment issues and fear of not complying with his study requirements, and due to his back injury. If the applicant had the opportunity to travel to Sri Lanka, he would have returned on multiple occasions.

    The applicant’s parents’ second application for a visitor visa to Australia was granted on 23 September 2014, however his parents refused to come to Australia at this time because they wanted to support their [youngest] son who was in the midst of studying and exams.[19]

    [19] Tribunal file, folio 88 (back).

30. The Tribunal makes no adverse findings against Mr Alwis’ in relation to the above. Mr Alwis’ evidence to the Tribunal was that in his early years in Australia he was trying to establish himself and focus on his studies and then later had his wife and son and then wife and sons in Australia. In recent times, Mr Alwis’ younger brother, as noted above, has also been studying in Australia.

31. There is no information before the Tribunal to indicate that Mr Alwis has been found to be in breach of any of the visas he has held in his time in Australia or that he has had any adverse immigration outcomes in any other country.

    Any other relevant information

32. In his closing submission to the Tribunal Mr Alwis said that he realises he has made some terrible decisions in the past, has been through some bad experiences but that if he is given one last chance he would do his best to build a career and start a new life, forgetting everything he has been through.

33. Mr Katugampala also made closing submissions on behalf of Mr Alwis, confirming that Mr Alwis cannot study hospitality courses at the bachelor degree level in Sri Lanka. Mr Katugampala told the Tribunal that when a major hotel recently opened in Sri Lanka they sent all their staff to Singapore for training. The Tribunal viewed these submissions as support for Mr Alwis’ decision and plan to continue his studies in Australia.

    Conclusions

34. The Tribunal has found that Mr Alwis does not meet the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations for the above reasons, which include, in summary that Mr Alwis:

    ·Has considerable incentive to remain in Australia to try and re-establish contact and a relationship with his children and that this incentive outweighs any incentive he has to return to Sri Lanka. This means that Mr Alwis has considerable incentive to maintain enrolment as a student in Australia not for the purpose of progressing academically but to maintain residency in Australia to further his plan to re-establish his relationship with his children;

    ·Claimed a dispute with his education provider at the time caused him to change his field of study from accounting to automotive but he provided very little documentation in relation to that dispute. In addition, Mr Alwis did not explain that situation in a manner that led the Tribunal to believe, whilst the dispute may have been genuine, that it caused the change in his field of study. This led the Tribunal to form the view that his change in study was to prolong his residence in Australia rather than as a genuine applicant for entry and stay as a student;

    ·Claimed a back injury meant he could no longer work as a mechanic and caused him to change his field of study from automotive to commercial cookery. The medical evidence provided in support of this claim was very limited and the Tribunal found Mr Alwis’ evidence about his injury and the change to working in hospitality to be unconvincing and lacking credibility. This caused the Tribunal to form the view that his change in study was to prolong his residence in Australia rather than as a genuine applicant for stay and study as a student;

    ·Has not completed any course of study since September 2015. The Tribunal acknowledges that the break-up of Mr Alwis’ marriage in March 2015 was a significant life event and the lack of access to his two children had a profoundly negative impact on him and his ability to study. However, again the documented medical evidence to support Mr Alwis’ claims of having mental health illnesses was very limited and did not convince the Tribunal that Mr Alwis had sought appropriate treatment and care to enable him to resume his studies as soon as possible. The circumstances Mr Alwis described caused the Tribunal to doubt whether Mr Alwis is a genuine applicant for temporary stay and study in Australia as a student; and

    ·Has completed only approximately four years of study in the over 10 years he has been in Australia indicating to the Tribunal that in his circumstances Mr Alwis is using the student visa program to maintain residence rather than genuinely stay in Australia temporarily to study.

35. On the basis of the above, and having considered Mr Alwis’ circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that Mr Alwis intends genuinely to stay in Australia temporarily to study. Accordingly, Mr Alwis does not meet the requirements of cl.572.223(1)(a) of the Act.

36. The Tribunal has found Mr Alwis does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that Mr Alwis does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests Mr Alwis meets the prescribed criteria for that subclass. As the Tribunal has found that Mr Alwis does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

    The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Michael Ison
    Senior Member