Fonseka (Migration)

[2019] AATA 1787

Fonseka (Migration) [2019] AATA 1787 (18 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hewafonsekage Sahan Prabuddha Fonseka

CASE NUMBER:  1828100

HOME AFFAIRS REFERENCE(S):           BCC2018/1081192

MEMBER:Adrienne Millbank

DATE:18 March 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 18 March 2019 at 5:02pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –applicant failed to compile with condition 8202– not enrolled in a full-time registered course of study – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140, 359AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 September 2018 made by a Delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant was born in Sri Lanka in 1986. He first arrived in Australia on 9 March 2017 on a Student (Subclass 500) visa granted on 6 March 2017 on the basis that he intended to undertake an approved Higher Education level course of study. He has no partner or dependents, and was enrolled in a Master of Professional Accounting (MPA) course with a start date of 27 February 2017 and a proposed end date of 30 November 2018.

3. The Delegate cancelled the visa under s.116(1)(b) on the basis that applicant was not enrolled in a full-time registered course of study as required by condition 8202. The Delegate noted that information in the Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had not been enrolled in the MPA course since 14 September 2017, when his enrolment was cancelled by his course provider. The Delegate found that the applicant did not meet the requirements of subclause 8202(2)(a), and that there was a ground for cancellation under s116(1)(b) as the visa holder had not complied with condition 8202.

4. The applicant appeared before the Tribunal on 7 March 2019 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent, who attended the hearing.

5. Adopting the procedures in s.359AA of the Act, the Tribunal informed the applicant at hearing that it had information, namely a copy of his PRISMS record, that would be the reason or could be part of the reason for affirming the decision under review. The Tribunal advised that the information was relevant because it indicated that his enrolment in his MPA course was cancelled in September 2017 for the reason of non-payment of tuition fees, and that he has not been enrolled in any course since this time. The applicant was advised that he could seek an adjournment and consult with his representative before providing a response.

6. The applicant sought and was granted one adjournment during the hearing. He requested, through his representative, an extension of time in which to provide evidence of enrolment or of his efforts to obtain enrolment in a Masters Degree course in the area of hospitality and tourism. The Tribunal granted the applicant 7 days to provide such evidence, but advised the applicant that while it would consider such evidence, it would not be pivotal to its decision; that the cancellation of his visa could not be rectified by another enrolment eighteen months after the cancellation of his course enrolment and six months after the Delegate’s decision to cancel his Student visa. 

7. On 14 March 2019 the Tribunal received a written submission from the applicant’s representative, which the Tribunal has considered. In this submission the representative advised the Tribunal that the applicant has not lodged a Partner visa application as stated in the decision record. No evidence was provided of enrolment or efforts to obtain enrolment in a Masters Degree course in the area of hospitality and tourism.

8. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

9. 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

10. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

11. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 attached to the applicant’s visa. This condition requires the holder to be enrolled in a full-time registered course of study.

12. In his response to the Departments Notice of Intention to Consider Cancellation (NOICC) letter emailed to the applicant on 28 June 2018, the applicant, through his representative, conceded that he was not enrolled in a registered course as required by condition 8202.  The applicant’s PRISMS records confirm that he was not enrolled in a course of study at the time of his response to the NOICC, and that he has not been enrolled in a course of study since September 2017.

13. The applicant confirmed to the Tribunal at hearing that he understood the Delegate’s decision. He confirmed that he has not been enrolled in a course of study in Australia since September 2017, and acknowledged that he was in breach of condition 8202.

14. 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)

15. 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 the visa should be cancelled.

    Consideration of discretion

16. There are no matters specified in the Act or Migration Regulations 1994 (the 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’.

17. In his response to the NOICC, the applicant through his representative made the following claims in requesting the Delegate to exercise discretion and not cancel his visa:

    • he found it really hard to study the Masters in Professional Accounting as he did not have a background in accounting;
    • he got really sick after coming to Australia and visited the doctor several times as well as consulting his home doctor over the phone in his home country. He informed his provider university about this;
    • he was researching a suitable course to enrol in. He was still interested in doing a Masters Degree in Australia, but in a different field;
    • he did not breach any other conditions of his visa;
    • the purpose of his travel and stay in Australia was to study;
    • he would be subject to detention and removal and his options would be limited to a  Bridging E visa, allowing him time only to depart Australia; and
    • his breach of condition 8202 was never intentional. He has been in constant contact with an education counsellor in his migration agent’s firm.

18. In a written submission dated 28 February 2019, the applicant’s representative repeated the above claims and added the following further claims:

    • it is very important for the applicant to complete his masters before returning to his home country;
    • he suffered illness, had issues with his back and visited a Chiropractic clinic a few times;
    • the applicant has done some research and is interested in completing a Masters Degree in Australia but in a different field; and
    • considerable weight should be placed on the fact that ‘the applicant is in constant touch with an Education Counsellor in (his agent’s) firm and they have been working together to get him enrolled in a registered course for the 2019 intake’.

19. At hearing, the Tribunal asked the applicant about his intentions and the purpose of his stay in Australia. The Tribunal asked the applicant specifically why he did not return home to Sri Lanka after the first semester of his MPA course if, as he explained at hearing, at this time he lacked motivation and aptitude for the course, decided that he did not want to complete the Degree, and was suffering from a debilitating and recurring back problem. The Tribunal put to the applicant that he already had a Masters Degree, namely a Masters of Business Administration (MBA) as well as a Diploma of Management and Leadership from the United Kingdom (UK), was in his thirties and had been outside of his home country on Student visas since 2009. The Tribunal asked the applicant why he did not return to the support of his family, find employment and put into practice the skills and qualification he already had,

20. The applicant argued that his employment prospects in Sri Lanka are limited; that he needs a more specialised qualification. The Tribunal asked the applicant if he had any evidence such as labour market statistics or research reports that job prospects for graduates holding an MBA and Management Diploma from the UK are limited in Sri Lanka; that he had, as claimed, applied unsuccessfully for two positions in Sri Lanka; and that his employment and remuneration prospects would be significantly enhanced with a Masters Degree in Hospitality from Australia. The applicant confirmed that he had no such documentary evidence. His representative advised that job opportunities in the field of hospitality in Sri Lanka are expanding because tourism is expanding.

21. The applicant claimed the purpose of his further stay in Australia was to obtain this further qualification and he does not want to leave Australia without it for the reasons stated above. He advised that he settled on a Masters in Hospitality not only because of expanding job opportunities in hospitality in Sri Lanka, but because of his experience working in hotels in Australia and the UK while on Student visas.

22. The applicant confirmed at hearing that he has tried to enrol in a relevant course only since being advised about the importance of this by his migration agent, and that he obtained the services of a migration agent only after receiving his Notice of Intention to Consider Cancellation from the Department in September 2018. His representative advised that his efforts so far have been unsuccessful because of his being on a Bridging E visa and his Student visa being cancelled.

23. The applicant acknowledged that he signed a declaration at the time of application in which he confirmed that he understood the conditions attached to his visa, including that he had to be enrolled in an appropriate course of study. He acknowledged that he knew it was his responsibility to remain aware of and to comply with the conditions of his visa, and that he was supposed to contact the Department regarding any significant change of circumstances such as ceasing his studies without obtaining alternative enrolment, for the purpose of clarifying any possible consequences for his visa and stay in Australia. The Tribunal asked the applicant why he did not comply with condition 8202, contact the Department regarding a possible change of course, or leave the country. He responded that he believed there would not be any consequences for his visa and stay in Australia following from the cancellation of his enrolment because there would be no actual enforcement of his compliance with his visa conditions including condition 8202. He stated that he was surprised to receive his NOICC and decided to engage a migration agent.

24. The Tribunal asked the applicant several times during the hearing why, if his purpose in travelling to and staying in Australia was to obtain another Masters Degree, he had not applied himself more diligently to his MPA course; why he had not enrolled in another course while he still held his Student visa, which was not cancelled until September 2018; and why he started investigating possible courses only after being advised to by his representative, for the sake of his visa and legal stay in Australia. The applicant did not respond to these questions, other than to repeat that he didn’t think his visa would in fact be cancelled.  

25. Regarding his health issues, the applicant provided evidence that he attended a ‘Spine-Tuning Chiropractic’ practice 11 times in the three months August to October 2017. He advised that he took two weeks off work because of his health issues, namely back pain. He stated that he did approach his provider about his back pain, but the provider proceeded regardless to cancel his enrolment. He acknowledged that his enrolment cancellation was for the reason stated on his PRISMS record, the non-payment of his tuition fees, rather than non-attendance through illness. He explained that he didn’t want to waste money on a second semester because he had struggled during his first semester with the coursework and his bad back.

26. The applicant acknowledged he did not seek deferment from his course provider on illness or compassionate grounds; that he had no evidence such as a hospital stay or medical reports or certificates certifying that he was unfit to attend class or study at any time or for any period; and, as noted, that he had not at any time contacted the Department regarding his changed circumstances. He repeated that he didn’t believe there would be consequences, in the sense of actual enforcement, for his visa and stay in Australia following from the cancellation of his enrolment.

    Purpose of the visa holder’s travel and stay in Australia

27. The applicant confirmed at hearing that the last time he attended a class as a student in Australia was in June 2017, and that he did not attempt to enrol in another course of study until advised to do so by his agent for the purpose of his visa and stay in Australia.

28. The Tribunal acknowledges that the applicant has attempted to obtain enrolment in another course of study, and that he has provided an explanation for his interest in a Masters Degree in Hospitality, namely his work in hotels and the growth of tourism in Sri Lanka. The Tribunal however does not accept on the evidence provided, namely the vague and general claims made at hearing, that his employment and remuneration prospects in Sri Lanka would be enhanced with a Masters Degree in Hospitality such as to warrant the expense and time involved.

29. The Tribunal considers that the applicant is seeking to enrol in a course of study in order to stay in Australia, rather than seeking to stay for the purpose of study, and does not accept on the evidence provided that he has a compelling need to remain in Australia.

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

    Extent of compliance with visa conditions

31. The applicant claimed that apart from his non-compliance with condition 8202, he has otherwise complied with his visa conditions. There is no information before the Tribunal to indicate that he has not complied with other visa conditions.

32. The Tribunal however finds the applicant’s extended period of 18 months of non-enrolment to be significant, and gives minimal weight in favour of the applicant under this consideration.

    Degree of hardship that may be caused

33. The applicant was unable to quantify the financial detriment he claimed he would suffer by not obtaining a Masters Degree in Australia. As discussed above, on the evidence provided the Tribunal is not satisfied that he would suffer any financial detriment if he returned to Sri Lanka as the holder of an MBA and Diploma in Management without an extra Masters Degree. The Tribunal notes that the applicant, when he returned to Sri Lanka in 2015 and 2016, before travelling to Australia, was employed in his uncle’s gem export business.

34. There is no information before the Tribunal to indicate, and the applicant did not claim, that he would suffer psychological or emotional or other hardship should his visa be cancelled.

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

    Circumstances in which ground of cancellation arose

36. The applicant’s enrolment was cancelled following his non-payment of his second semester fees. He acknowledged at hearing that the circumstances of his course cancellation were not beyond his control. He acknowledged, as noted, he knew it was a condition of his visa to be enrolled, but did not think there would in fact be any enforcement action. His representative at hearing described the applicant as naïve and ignorant about Australia’s migration system and culture.

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

    Past and present behaviour of the visa holder towards the Department

38. The Tribunal accepts that the applicant responded to his NOICC within the specified time frame. The Tribunal notes however that the applicant at no time contacted the Department regarding the implications of his changed circumstances for his visa and stay in Australia.

39. The Tribunal gives some but minimal weight in favour of the applicant under this consideration.

    Consequential cancellations under s.140

40. The applicant has no partner or dependents. There would be no consequential cancellations. The Tribunal gives no weight to this consideration.

    Mandatory legal consequences,

41. The applicant is the holder of a Bridging Visa E, allowing him to remain in Australia and out of detention pending finalisation of his case and his organisation of his departure. The applicant would have limited options to apply for other visas while onshore, and could be subject to a three year ban from being granted another temporary visa from the date of the cancellation. The Tribunal does not consider these administrative sanctions unreasonable. The applicant expressed no interest in applying for other visas, temporary or permanent; his stated intention is to return to Sri Lanka on completion of his studies; and he already holds a high-level qualification from a university in the UK.

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

    International obligations

43. The applicant confirmed at hearing that he has no reason not to want or fear to return to Sri Lanka, including for any reason under the UN Refugee Convention. He confirmed that he has no partner and no children.

44. The Tribunal gives no weight in favour of the applicant under this consideration.

    Any other relevant matters

45. Regarding the illness the applicant claimed to suffer from after coming to Australia, he advised at hearing that the illness he suffered from was back pain. He advised that he experienced pain specifically in his shoulder and upper back. As noted at paragraph 26 above, the applicant provided no documentary evidence relating to a hospital stay, or medical reports or certificates certifying that he was unfit to attend class or study at any time or for any period. No evidence was provided further to his claim made in his response to the Department’s NOICC, that he consulted with a doctor in India by phone.

46. In these circumstances, the Tribunal gives little weight in favour of non-cancellation on the grounds of the applicant’s illness.

47. The Tribunal is satisfied that the ground for cancelling the applicant’s visa exists. Having considered and weighed the matters above, the Tribunal is satisfied that the grounds for cancelling the visa outweigh the grounds for not cancelling.

48. 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 Subclass 500 (Student) visa.

   Adrienne Millbank
   Member