Dikkumbura (Migration)

[2019] AATA 4071

Dikkumbura (Migration) [2019] AATA 4071 (3 September 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Charitha Thilanka Dikkumbura

CASE NUMBER:  1910525

HOME AFFAIRS REFERENCE(S):           BCC2019/186342

MEMBER:Mark Bishop

DATE:3 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 September 2019 at 5:08pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – adjustments and challenges of studying abroad – responsibility of visa holder – significant length of non-enrolment – decision under review affirmed

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

CASES
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 17 April 2019 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 issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 3 September 2019.  

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 applicant was notified of the intention to consider cancellation (NOICC) on 11 March 2019 by email and the notice invited the applicant to respond in writing. The applicant did respond on 18 March 2019 (Df: 1 and 19). The applicant stated he had “made a mistake” (Df: 19). He outlined reasons for the exercise of the discretion in his favour. He outlined the following:

   ·He acknowledged he had broken the local law;

   ·His family had put in a lot of time and money to enable him to study in Australia;

   ·He found it difficult to settle in Australia. There were new challenges. His mother became ill and had surgery. His studies suffered. He did not handle the situation well. He is now focused. He realises he made mistakes;

   ·He attached a copy of a reference letter;

   ·If he has to return home he does not know how he will handle the shame and disapproval. There are high expectations in his culture;

   ·His parents have travelled to Australia and value this country;

   ·He will commence study in April 2019

10. Immediately prior to the review hearing the applicant provided documentation to the Tribunal as follows:

    ·Medical documentation advising his mother suffered from a series of complaints from February 2016 until the present;

    ·Angiogram reports for his mother;

    ·A COE in an Advanced Diploma of Accounting that commenced 16 April 2019 and is scheduled to conclude on 15 April 2021;

    ·Pictures of the feet of an unidentified person taken at an unidentified location on two separate dates in November 2018 and January 2019;

    ·A copy of a picture of a CD in his name.  He advised the Tribunal the CD was a police recording of material relating to his temporary apprehension by police arising out of an incident in Adelaide on 26 November 2018. He advised the Tribunal he was spoken to by police, they recorded the interview and released him on the same day because the police advised he was not the person they were looking for.

11. The Tribunal asked the applicant to explain the relevance of the CD material as he had not been enrolled in study from April 2018. The applicant advised the Tribunal the police engaged in brutality upon his body and caused his feet injury when they removed him from the car. He provided pictures of the feet of an unidentified person that showed bandages attached to the feet. He did not provide detail of any medical attention arising from the alleged incident. He did not provide a copy of any medical reports that confirmed the incident had occurred as alleged. In response to questions he advised he did not make any complaints to any authorities and did not make a complaint to the police concerning the allegations of brutality. He advised he had not made a complaint to any person or organisation. In response to further questions he could not explain why the police would detain him, ask him questions, conduct an investigation and release him all on the same day and at the same time effectively engage in assault on his person. He attempted to link this allegation of police brutality to his period of non-enrolment after 26 November 2018 until April 2019. The applicant confirmed to the Tribunal the period December to February in Australia was a holiday period and normally he would not have been engaged in study if he had been enrolled. He could not offer reason for the lengthier period of non-enrolment prior to this incident on 26 November 2018.

12. The applicant in the above statement as summarised in paragraph 9 did not make any reference to the allegations of police brutality. The applicant explained this omission by saying he was fearful of a repeat of the police brutality that he alleged occurred on 26 November 2018. The applicant was unable to explain why the police would engage in police brutality some four months after the event. The applicant advised he did not make any reference to the allegations of police brutality in his 20 March 2019 submission to the Tribunal because it did not occur to him at the time of writing the submission. He was still fearful of a further attack by the police and still has that fear now. He was unable to explain why he though the police might engage in further acts of police brutality in a different state many months after the first incident when he had been cleared by the police of any involvement.

13. The Tribunal accepts that being detained and questioned by police for a short period could cause consternation. In this case the applicant was advised by the police of his release and no further interest by the police on the same day. The applicant made the most serious of allegations against the police concerning his temporary detention. He was unable to provide any evidence of corroboration of the events. The pictures provided by the applicant do not disclose any location or identity. The applicant did not provide a statutory declaration that outlined relevant detail. The applicant did not refer to the incident in his written submission to the Tribunal dated 30 March 2019. His employer and mentor advised the Tribunal he had not heard of the incident until he heard the applicant’s evidence in the Tribunal hearing. The Tribunal is unable to give the incident as outlined in paragraphs 10 to 12 above much weight as a reason for his continuing non enrolment after 26 November 2018.

14. He provided a copy of a reference and a copy of a COE for enrolment in an Advanced Diploma of Accounting commencing 16 April 2019.

15. The applicant’s employer advised the Tribunal he met the applicant in December 2018. He thought the applicant needed a bit of guidance. He advised he had not been aware of the allegations of police brutality prior to the hearing. The employer is a financial planner and advised the applicant works 1 or 2 days per week for work experience. He tried to mentor the applicant. He is of the view the applicant has improved in attitude a bit over the last recent period. The employer advised the Tribunal he thought the applicant now understood he should have sought assistance during 2018.

    Does the ground for cancellation exist?

16. On 19 December 2016 the applicant was granted a Student (subclass 500) Vocational Educational and Training Sector 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.

17. 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 6 April 2018 up to 27 February 2019 a period of 328 days. It advised that on 6 April 2018 the applicant’s education provider notified the Department that he had ceased his studies and was no longer enrolled. It also showed that the Melbourne Institute of Education issued a new COE for the applicant. The delegate made a finding the applicant did not hold enrolment in a CRICOS registered course for the period 6 April 2018 to 27 February 2019. In evidence the applicant advised the finding of the delegate was correct.

18. Having regard to the information in the PRISMS as outlined in the decision record and confirmed as correct by the applicant in evidence, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 6 April 2018. The Tribunal finds that he breached condition 8202(2)(a) of his visa.

19. 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).

20. 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.

    Consideration of the discretion to cancel the visa

21. 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

22. 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

23. The applicant advised he was currently enrolled in studies. He does have a mentor now. He needs to complete his studies prior to returning to Sri Lanka because his parents have spent a lot of money on him in Australia. The Tribunal asked the applicant to address “compelling need”. The applicant advised his mother was sick and if he did not finish his studies she would be disappointed. He advised his mother would be upset at his failure in studies in Australia. He was now mentally in a good place and wished to finish his studies. He advised the Tribunal this explanation was his compelling reason. In evidenced the applicant advised his mother had been aware from April 2018 that he had discontinued his studies in Australia. During that period she continued to provide remittances to cover his costs in Australia. His mother was not aware of the decision of the delegate and the subsequent review application to the Tribunal. The Tribunal is inclined to the view the disappointment of the applicant’s mother in the context she has been aware for a long time of his non-enrolment does not amount to a compelling reason for the applicant to remain in Australia.

    The extent of compliance with visa conditions

24. 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)

25. The applicant advised the Tribunal he might suffer hardship because his mother might get affected because his mother is not aware of the possibility his student visa will be cancelled. His mother was aware he was not studying in the relevant period right from the beginning of non-enrolment. His mother is not aware the Department cancelled his student visa in April 2017 and was not aware of his review application to the AAT.

26. The applicant advised he would not suffer any other hardship and there was no other difficulty. If he returns home he will find employment. He advised his parents were comfortably off not super wealthy. He advised his parents owned a film and video production company and owned land. His parents receive a good income from their business enterprise. He advised if he returned home he would find employment, he would not suffer any further hardship and his main concern was that his mother would be upset at his failure in his studies in Australia. He advised the Tribunal he did not have any further concerns about hardship. He advised the only concern he had was his mother’s reaction.

27. The Tribunal is inclined to the view the applicant can return home comfortable in the knowledge his family will welcome him, will chastise him for his dilatory approach to study in Australia, will be critical of his waste of their money, will be disappointed at his failure to take advantage of opportunity in Australia and will assist him if needed to find employment and continue his life in his home country.

    Circumstances in which ground of cancellation arose

28. The circumstances relating to cancellation of his visa arose are outlined at paragraphs 16 to 19 above.

29. 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.

30. 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 visa holder 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 visa holder 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.

31. The fact remains that the applicant was not enrolled in a registered course of study from 6 April 2018 up to 27 February 2019 a period of 328 days and therefore has not complied with condition 8202. The Tribunal gives this consideration significant weight.

    Past and present behaviour of the visa holder towards the department

32. 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

33. 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

34. 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

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

36. Any other relevant matters

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

38. 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.

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

    DECISION

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

    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.