Delpachitra (Migration)

[2019] AATA 2385

Delpachitra (Migration) [2019] AATA 2385 (22 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saveen Marious Delpachitra

CASE NUMBER:  1822277

HOME AFFAIRS REFERENCE(S):           BCC2018/1081126

MEMBER:Amanda Pearson

DATE:22 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 22 June 2019 at 5:10pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – serious breach – financial difficulties – brothers now able to financially assist – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 July 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2.    The applicant arrived in Australia on or around November 2011 after being granted a student visa. The Applicant is from Sri Lanka and came to Australia with the intention of studying a Diploma of Hospitality. He completed this course in February 2014.

3.    The applicant was subsequently granted a second student visa on the 28^th September 2016 for the purposes of completing his Bachelor of Hospitality Management in which the applicant had commenced in 2015.  The delegate cancelled the student visa on the basis that the applicant was not enrolled in a registered course from 23 August 2017 to 14 June 2018 and as such breached condition 8202(2)(a). In applying for review to the Administrative Appeals Tribunal, the applicant also provided a copy of the delegate’s decision.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.    The applicant appeared before the Tribunal on 14 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

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.    On 5 June 2019, the applicant provided to the Tribunal the following documents to support his case:

·     An Education Access Australia academic transcript dated 21 March 2014.

·     A letter from Mr Harpel Singh, Director of the Education Access Australia stating that the applicant had been enrolled as a full time student of SIT60307 Advanced Diploma of Hospitality at Education Access Australia from 20^th February 2012 to 2 February 2014.

·     A statement of results from the Homesglen Institute for a Bachelor of Hospitality Management dated 6 July 2016 for the years 2015 and 2016. 

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

2. The applicant provided the Tribunal with a copy of the delegate’s decision which outlined that the Provider Registration and International Student Management System (PRISM) indicated that the applicant had not been enrolled in a registered course from the 23^rd  August 2017 to 14^th June 2018. The delegate cancelled the visa on the 27^th July 2018. The Tribunal discussed this with the applicant and he confirmed this to be correct.  On the evidence before the Tribunal and by his own admission, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2)(a) for nearly 10 months before the visa was cancelled.

   
   
   Consideration of discretion to cancel the visa

3. 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’.

   Background evidence taken at hearing

4. The applicant arrived in Australia in or around November 2011. He was born in Sri Lanka on 30 December 1987 and is 31 years of age.  He is single and does not have any children.

5. In relation to his family background, the applicant informed the Tribunal that his parents are both retired and are living in Sri Lanka.

6. The applicant has two older brothers living in Melbourne. His eldest brother is Mr Thushan Delpachitra who is employed by Australia Post as an IT Manager. His other brother is Mr Lilian Delpachitra who is employed by me.com as a bank manager.

7. Prior to arriving in Australia, the applicant had completed a Certificate III in Food and Beverage as well as a Housekeeping course at the Ceylon Hotel School in Sri Lanka.  After completing these courses, the applicant was employed in various Sri Lankan hotels.

8. The applicant explained that he had been in Australia for 7.5 years. He told the Tribunal that his parents have visited him in Australia.

9. The applicant claimed he has held two student visas; the latest being renewed on 28 September 2016. His objective to coming to Australia was to obtain a better life in the future and to obtain an education.

10. The applicant told the Tribunal that he had completed a Diploma of Hospitality course which included a Certificate III in Commercial Cookery course at the Education Access Australia on 2 February 2014.

11. The applicant further told the Tribunal that he subsequently enrolled in the Bachelor of Hospitality Management in 2015 at the Holmesglen Institute whereby he completed seven subjects.  The last subject that the applicant completed was “Customer Relationship Management” in 2016. The applicant claimed he still has four subjects to complete before being awarded the Bachelor of Hospitality Management.

12. The applicant told the Tribunal that from 23 August 2017 to 14 June 2018 he was working 20 hours per week as a chef; earning $450 per week. On this basis he told the Tribunal that he could not afford the Bachelor of Hospitality Management course fees of E$4000 a semester.  He said that he was able to initially fund the course fees from his savings that he had accumulated prior to commencing the Bachelor of Hospitality Management.  The applicant further said that he had asked his two brothers and his parents for financial assistance towards his course fees, but they all were not able to do so.

13. The applicant claimed that he has lived with his eldest brother, Mr Thushan Delpachitra and his wife together with their two boys who are 3 and 5 years of age since his student visa had been cancelled. He further claimed that since his visa had been cancelled he had not worked or studied despite the fact that on the 14 June 2018 the applicant had enrolled in the Bachelor of Tourism and Hospitality Management course at the Academies Australasia Polytechnic Pty Ltd with the financial assistance from his family including his Uncle who lives in New Zealand.  When asked as to why he had not continued with his studies he told the Tribunal that he believed he was not able to do so because his student visa had been cancelled.

14. Whilst living with his eldest brother he told the Tribunal that he had been assisting his brother and wife with the care of their children.

    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

15. The applicant explained during the hearing that he wanted to obtain an education that would set him up for a better life.

16. He told the Tribunal that if his student visa was cancelled, that he would have no money and no education. He claimed that it would be very difficult for him if his visa is cancelled because he will leave Australia empty handed.  He also claimed that his parents would be disappointed if he returned to Sri Lanka with no further qualifications.

17. The applicant claimed that both his brothers and parents are aware that his visa has been cancelled.  However, with the financial assistance from family including his Uncle who resides in New Zealand, he was able to enrol on 14 June 2018 in the Bachelor of Tourism and Hospitality Management course at the Academies Australasia Polytechnic Pty Ltd. He told the Tribunal that his two brothers now are willing to financially assist him with his future studies as they now have the money to do so.

18. The applicant expressed a need to remain in Australia to complete his studies.  He also told the Tribunal that once he completes the Bachelor of Tourism and Hospitality Management course that he intends to study the two year Gastronomy and Food Science course at the William Angliss Institute.  After completing his studies, the applicant hopes to work as a chef in either Europe or Dubai. The applicant’s long term ambition is to open an Australian or European restaurant.

19. The applicant has indicated that he does not want the Tribunal to cancel the visa because he wishes to study hospitality management. The applicant further claimed that if he is prevented from studying in Australia because his visa is cancelled, then his future will be ruined because he will have nothing. The Tribunal gives these reasons minimal weight as the applicant can reapply to study after the exclusion period.

20. The Tribunal appreciates the significance of obtaining a student visa for the applicant and his family, but it does not operate to ameliorate the applicant for a lack of prioritising his studies because of his lack of monetary funds.

    The extent of compliance with visa conditions

21. The applicant has stated that he has complied with all other conditions of his visa.  There is nothing before the Tribunal to indicate that this is not the case. The Tribunal gives this some weight in favour of the applicant with not cancelling the visa, however remains mindful that it expected that all visa holders adhere to the conditions on their visa.

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

22. The applicant explained that his future will be ruined if he is not able to study in Australia as he will have no qualifications to enable him to advance his career and or financial income. He also stated that he does not want to return to Sri Lanka because of the disappointment that his Sri Lankan family would experience if his visa was cancelled.

23. The applicant also claims that his relationship with his two brothers and their families may also be affected.  He stated that he had been living with his eldest brother and his family for over the past year and that he had assisted his brother with the care and his brother’s two sons. He told the Tribunal that his two brothers are permanent residents in Australia. When asked if he thought his two brothers and their families would visit him in Sri Lanka if the applicant’s visa was cancelled, he told the Tribunal that he thought they would most likely visit him for a holiday as they both had previously visited his parents in Sri Lanka.

24. The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

25. The Tribunal also accepts that the hardship is felt by family members who may also feel let down and disappointed.

26. The Tribunal accepts that a cancellation may contribute to the emotional pressure and stress that the applicant may already be facing.  However, the Tribunal is also mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as no-enrolment.  Whilst appreciating the hardship the applicant, his brothers and their families and the applicant’s Sri Lankan parents may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

    
    Circumstances in which ground of cancellation arose.

27. The applicant told the Tribunal that he had experienced some very bad financial times whilst being in Australia.  He also stated that he was very stressed when he was not enrolled in a registered course between 23 August 2017 and 14 June 2018 because had no money.  He claimed that he had no savings as they had been spent towards the subjects he had already completed in Australia.  He also claimed that he was only earning $450 per week.

28. When the applicant was asked if he was experiencing any other stressors prior to not being enrolled in a registered course and or during the almost ten months that he was not enrolled in a registered course, he told the Tribunal that the answer was that there were no other stressors only financial. He also stated that he felt that he could not share his woes with his brothers as they had their own families to support. Nevertheless, he did tell the Tribunal that he asked his two brothers some time during the period when he was not enrolled in a registered course for financial assistance and they had indicated to him that they had no money to assist him.   

29. The applicant claimed that he now wanted to just try his best and have one more chance to complete his studies in Australia as his brothers could now financially assist him. He stated that since his student visa had been cancelled his brothers had told him that they would find a way to financially help him with his studies. 

30. The Tribunal acknowledges that the applicant has stated he wishes to study in Australia.  Whilst the Tribunal have given some weight to his claim that he experienced financial difficulties and is now remorseful for his inability to study in Australia. The fact is that the applicant’s brothers are now able to financially assist him after the visa has been cancelled despite saying they previously were not able to do so. The Tribunal appreciates there would have been financial pressure and stress for the applicant, however student visas are granted for the purposes of studying and achieving a qualification.  Individually and cumulatively the issues put forward by the applicant pertaining to the circumstances in which the breach occurred are given some weight but not sufficient weight to outweigh the reasons for cancelling the visa because of the seriousness of the breach.
    
    

    Past and present behaviour of the visa holder towards the department

31. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

    
    Whether there would be consequential cancellations under s.140

32. This is not relevant to the applicant.

    
    
    

    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

33. In the event that the applicant’s visa is cancelled he would need to obtain a bridging visa to ensure he is lawful until he makes arrangements for his departure.  The applicant could avail himself of migration advice.

34. The applicant told the Tribunal that he had felt he had wasted the past year as was not able to study. He stated to the Tribunal that he just wanted to be able to have one more chance to get his life back and complete his studies.  Whilst the Tribunal appreciates the applicant is now remorseful for inability to study in Australia and the fact that his brothers are able to assist him now, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

35. The Tribunal appreciates that the applicant would face a three year exclusion period and would need to ensure his immigration status was lawful however these are the natural consequences of a cancellation and as such, the Tribunal gives this minimal weight in favour of the applicant.   

    
    
    

    Australia’s international obligations

36. There is nothing before the Tribunal to suggest that the cancellation of the visa holder’s visa would breach any international obligations.  The Tribunal places no weight on this in favour of the applicant.

    
    
    

    Any other relevant matters.

37. This is not relevant to the applicant.

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

DECISION

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

Amanda Pearson
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.