Chandrasekara (Migration)

[2019] AATA 6372

Chandrasekara (Migration) [2019] AATA 6372 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sameera Chinthaka Chandrasekara
Mrs Vindya Yashani Asmini Wanasundara

CASE NUMBER:  1718851

HOME AFFAIRS REFERENCE(S):           BCC2017/2286199

MEMBER:Mark Bishop

DATE:4 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.

The Tribunal has no jurisdiction with respect to the second named applicant Mrs Vindya Yashani Asmini Wanasundara

Statement made on 04 October 2019 at 2:25pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – compelling and compassionate factors – personal, relationship and family issues – treatment for stress and anxiety – discretion to cancel visa – factors for and against cancellation – no contact with education provider or department – treatment after department issued notice of intention to consider cancellation of visa – applicants left Australia – decision under review affirmed for first applicant, no jurisdiction for second applicant

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), (3), 140

Migration Regulations 1994 (Cth), Schedule 8, condition 8202

CASE
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 18 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. 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 Tribunal conducted a telephone hearing on 4 October 2018.

4. The applicant provided a copy of the decision record to the Tribunal.

5. 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

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 delegate made a finding that according to PRISMS and as outlined in the decision record the applicant had not been enrolled in a registered course of study from 21 November 2016. The applicant remained onshore without a valid Confirmation of Enrolment (COE). In evidence the applicant advised the Tribunal he had not been enrolled in a registered course of study after 21 November 2016.

10. The applicant was notified of the intention to consider cancellation (NOICC) on 2 August 2017 by email and the notice invited the applicant to respond in writing. The applicant did respond in writing. The applicant stated there were special compelling and compassionate factors that occurred which were beyond his control. He did not agree with the grounds for cancellation.

11. Those special compelling and compassionate factors were outlined in the written response to the NOICC as follows:

    ·The applicant could not concentrate on his studies due to stress associated with his arranged marriage;

    ·The applicant’s wife suffered a sexual assault upon commencement of new employment in Australia and he suffered guilt associated with this assault;

    ·The applicant’s in-laws suffered from floods that occurred in Sri Lanka in May 2017 and lost their belongings , causing him further stress;

    ·The applicant is attending a psychologist to address his stress and anxiety issues and he is not psychologically ready to study.

    Does the ground for cancellation exist?

12. On 12 September 2016 the applicant was granted a Student (Temporary) (class TU) Higher Education Sector subclass 573 visa. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. 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.

13. The decision record contained information from the Provider Registration and International Student Management System (PRISMS). It showed the applicant had not been enrolled in a registered course of study from 21 November 2016.

14. In evidence the applicant advised the Tribunal he had not been enrolled in a registered course of study from 21 November 2016.

15. The applicant made reference to Regulation 2.05(4) of the Migration Regulations 1994. He submitted it was applicable in the review application. R.2.05(4) makes reference to subsection 41(2A) of the Act. It refers to conditions attached to visas and waiver of conditions attached to visas. Regulation 2.05(4) is not applicable in this instance and there is no evidence before the Tribunal that it had been waived for the applicant.

16. The delegate made a finding there was no evidence before her that condition 8202 had been waived for the applicant. Accordingly condition 8202 was still attached to his visa. The applicant was still subject to conditions attached to his visa.

17. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

18. 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.

19. The delegate made a finding there was no evidence before her that condition 8202 had not been waived for the applicant. Accordingly condition 8202 was still attached to his visa. The

    Consideration of the discretion to cancel the visa

20. 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’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

    Consideration of discretion

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’.

    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

22. The applicant advised he came to Australia for the purpose of study. The applicant wrote to the Tribunal on 23 March 2018 and advised he and his wife were leaving Australia. He and his family left Australia on 23 March 2018. The applicant formally separated from his wife in February 2019. The couple are engaged in divorce proceedings.

23. In evidence to the Tribunal the applicant advised he had departed Australia on 23 March 2018 and his wife accompanied him. He is now resident in Sri Lanka. He advised he pursued psychological treatment in Australia for his stress and anxiety.  He advised that treatment in Australia ceased after he returned home.  The applicant advised he had not pursued any studies in Australia after 21 November 2016.

24. The applicant has not maintained his enrolment in the registered course that he applied to study onshore

25. The applicant has advised has indicated he is unfit to study and does not hold any valid enrolment. The Tribunal is not aware of any reason for the applicant to retain his Student visa. The purpose of the Student visa is for studying towards, and achieving, an educational qualification. The applicant’s stated purpose for remaining onshore was to pursue his psychological treatment. The Tribunal is of the view the applicant can continue his treatment in his home country and where he may also access family support for his anxiety.

26. The Tribunal gives the above considerations minimal weight in favour of the applicant.

27. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

28. The applicant advised he did not have any current plans to return to Australia. The Tribunal inquired of the applicant if he would suffer any hardship if the visa was cancelled. The applicant advised the Tribunal he would not suffer any hardship. He was currently working   in a good job in his home country.

29. The applicant advised he would not suffer any other hardship.

30. In evidence the applicant advised his spouse also onshore remained onshore and departed Australia on 23 March 2018. Neither the applicant nor his spouse has returned to Australia. They are both resident in Sri Lanka. Her visa will also be cancelled- see below "Persons in Australia cancelled under s140". This is not an unintended consequence of the legislation and will keep both visa holders' immigration status aligned.

31. There is no evidence that any other family members in Australia will be negatively impacted by the cancellation of his visa.

32. The Tribunal considers the visa holder will not incur significant hardship in being unable to pursue his studies in Australia at this time. The applicant’s TU 573 visa expired on 15 March 2018. The Tribunal is not aware of a subsequent application for a new visa. His TU573 visa was granted for purposes of studying at the Bachelor or Master’s degree level.

33. Although the COE was cancelled due to non-payment of fees (as found by the delegate) there is no evidence before the Tribunal to indicate the visa holder suffered financial hardship. Similarly the Tribunal does not consider cancellation of the visa will cause any significant financial hardship.

34. The Tribunal gives this consideration minimal weight in favour of the applicant.

    Circumstances in which ground of cancellation arose

35. According to PRISMS records as outlined in the decision record the applicant’s COE was cancelled due to non-payment of fees. He was issued with a Notice of Intention to Report by the education provider. The applicant chose not to access the Complaints and Appeals process. The COE was cancelled after a 20 working day appeal period lapsed.

36. In his NOICC response, the applicant stated there were circumstances of a compelling and compassionate nature that occurred and that were beyond his control. These circumstances included stress associated psychological issues resulting from an arranged marriage, an incident involving his spouse at work and his in-laws' property being impacted by floods in Sri Lanka. Due to the stress associated with these events the circumstances impacted on his ability to continue his study.

37. The applicant provided a copy of a report from Counselling Psychologist, Rosemary Williams, of Camberwell Road Medical Practice to support this.

38. Whilst the Tribunal accepts the applicant has suffered a number of setbacks during his period of stay in Australia, both before and after the grant of the TU573 visa the Tribunal gives this consideration minimal weight in favour of the visa holder because:

    · The applicant was made aware of the visa conditions attached to his visa, at the time of grant of the visa. This was confirmed by the migration agent's comments in the NOICC response "...my client knows that he cannot be in Australia without a Confirmation of Enrolment..."

    · There is no evidence to indicate the applicant sought intervention or assistance from the education provider to assist in dealing with his issues;

    ·     there is no evidence the applicant sought a deferral of his studies on compassionate grounds prior to the enrolment being cancelled;

    ·     The Tribunal notes the psychologist report stated the visa holder attended for treatment from 12 October 2015 - 15 August 2016. This period was prior to the visa having been granted. No further treatment for his condition was sought until 31 July 2017, after the Department had initiated contact with the applicant in respect to issuing the NOICC;

    ·     There was no information put forward regarding financial hardship, despite both the COE for his Masters degree and his previous COE held for an Advanced Diploma of Business both being cancelled for non-payment of fees;

    ·     Whilst the Tribunal accepts some of the stress related events may have been outside of his control the Tribunal does not consider it was outside of the applicant’s control to liaise with his education provider regarding alternative options for his enrolment and liaise with the Department regarding visa options and visa status.

39. The Tribunal acknowledges that international students may face many adjustments and challenges when studying and living in Australia. It is a reasonable expectation that any visa holder understands the conditions of a student visa and seeks assistance from the Department if required.  There is no evidence before the Tribunal that the applicant ever contacted the Department in relation to his student visa and any issues he was facing.

40. The ground for cancellation arose when the applicant first ceased enrolment with a registered education provider and the applicant has been given an adequate amount of time to rectify his enrolment status. The Tribunal considers it reasonable to expect that the applicant was aware when he was granted the visa that it had condition 8202 imposed on it which includes that the visa holder is enrolled in a registered course. The Tribunal considers the applicant would have been fully aware that he had indeed ceased enrolment with a registered education provider as he is a direct party to that enrolment. Therefore the Tribunal considers that he would reasonably have realised that this fact would have impacted on his eligibility to continue to hold his Student visa.

41. The fact remains that the applicant was not enrolled in a registered course of study from 21 November 2016. The Tribunal gives this consideration significant weight and the information outlined in paragraphs 35 to 38 minimal weight in favour of the applicant.

    Past and present behaviour of the visa holder towards the department

42. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach

    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

43. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

44. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

45. There is nothing before the Tribunal to indicate there are international obligations to consider.

46. Any other relevant matters

47. The Tribunal is not aware of any other relevant matters.

48. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-573 visa  and that a breach of almost twelve months is significant in the context of a student’s study period.

49. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

50. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

51. The Tribunal has no jurisdiction with respect to the second named applicant Mrs Vindya Yashani Asmini Wanasundara

    Mark Bishop
    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.