Galagama Pathiranage (Migration)

[2020] AATA 2711

Galagama Pathiranage (Migration) [2020] AATA 2711 (5 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bawantha Mahesh Pathirana Galagama Pathiranage

CASE NUMBER:  1805790

HOME AFFAIRS REFERENCE(S):          BCC2017/4282773

MEMBER:Donna Petrovich

DATE:5 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 05 June 2020 at 12:55pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – study difficulty and grandfather’s death – mental health and treatment – no further enrolment or study – intention to complete study and return to home country – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was un-enrolled for a period of nine months. He was not enrolled from 15 May 2017 and was sent a Notice of Intention to Consider Cancellation on 24 January 2018. 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 5 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Uththara Mudiyanselage, who is the applicant's friend, and is from his home Kandi, in Sri Lanka.  

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

   Background

6. The applicant is a 25 year old Sri Lankan man who originates from Kandi. His parents, grandmother, and younger sister remain in Sri Lanka. His father operates a tour company and his mother manages a hotel for the family. The applicant arrived in Australia and was granted a visa on 23 February 2014. He commenced studying a Diploma of Engineering (Mechanical) at Swinburn University of Technology.  He successfully completed this Diploma achieving three High Distinctions.  He then commenced a Bachelor of Engineering, which he struggled to pass.  His grandfather became ill and passed away, and the applicant was assessed on 10 April 2017, suffering severe distress at the death of his grandfather on the 18 April 2016 and could not resolve his grief. The Provider Registration and International Student Management System (PRISMS) records that the applicant’s enrolment in the Bachelor of Engineering was cancelled due to non-enrolment.

7. A Notice of Intention to Consider Cancelation (NOICC) was sent to the applicant on 24 January 2018; the applicant did not respond and failed to notify the Department of any difficulties that he may have been experiencing. The applicant did not advise the delegate of any of the difficulties that he was experiencing, or any medical condition.

8. The applicant lives in a share house with several friends who he knew from Kandi and is supported by a friend of the family who also originates from Kandi, who is married with her own family, but has provided him with practical support when required.

9. The applicant provided the Tribunal with the following documents:

   ·A Psychological assessment and report from Rosemary Williams Psychologist,

   Counselling Psychologist and Member of Australian Psychologist Society

   ·The applicant’s Statement of Purpose    

   Did the applicant comply with Condition 8202?

10. 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).

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

12. The applicant was granted a Student (Temporary) (Class) (TU) Higher Education 573 Visa on 10 June 2014.  Hid visa was cancelled on 23 February 2018, and the applicant had not been enrolled since 15 May 2017.  The Applicant had completed a Diploma of Engineering but has not been able to complete his Bachelor of Engineering. 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).

    Consideration of the discretion to cancel the visa

13. 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 Procedural Instruction ‘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 or stay in Australia

14. The applicant told the Tribunal that he came to Australia to complete an Engineering Degree, which was to fulfil his grandfather’s dream of studying engineering, an opportunity that he was not able to achieve himself. The applicant told the Tribunal that this was important to him as his grandfather had now passed away. The, applicant during the hearing confirmed that his intended purpose of travelling to Australia was to study; he also confirmed that he wished to complete his studies.

15. However, the applicant’s visa was cancelled on 23 February 2018, and he has not been enrolled in a registered course of study since that date. Since being granted a Student (Temporary)(class) TU) Higher Education Sector (subclass 573) on 10 June 2014. The applicant has completed a Diploma of Engineering and was unable to complete a Bachelor of Engineering and has remained in Australia in breach of the conditions of his visa. The Tribunal places little weight in favour of the applicant.

16. The applicant claims that he intends continuing his studies in Australia and wishes to complete a Bachelor of Engineering and return home and start his own engineering business. The applicant has provided no evidence of future enrolment, which is accepted by the Tribunal as his bridging Visa E does not provide for study or work rights. The Tribunal accepts that this was the motivation for the applicant commencing studies in Australia and places some weight in the applicant’s favour.

17. Accordingly, the Tribunal places some weight to the applicant’s statement that the purpose of him travelling and staying Australia was to study.

    Compliance with visa conditions

18. The applicant has not been enrolled in a registered course since 15 May 2017. The applicant did not seek work or study rights as part of his bridging Visa E.

19. However, the applicant has remained in Australia without having complied with the conditions of his visa.  As such the applicant’s non-compliance is significant and as such the Tribunal gives little weight in the applicant’s favour in considering this factor.

    The degree of hardship that may be caused to the applicant

20. The applicant told the Tribunal that his parents, his mother, would be devastated, as she wants him to finish his studies. When asked how it would impact on him if the delegate’s decision was upheld, the applicant told the Tribunal that it was very important to him that he fulfil his grandfather’s legacy, and that he would appeal if the delegates decision was upheld. The Tribunal in considering this does not consider that these reasons constitute real hardship and therefore places little weight in the applicant’s favour in exercising discretion not to cancel.  

21. The applicant did not raise specific matters of hardship in the hearing. The applicant’s friend gave evidence at the Tribunal that his parents are well off and stated that they owned two Hotels in Kandi and travel agencies, and it had been their desire that he become involved in the family business. Whilst the applicant’s parents may be disappointed that their son has not achieved a qualification in engineering, the Tribunal does not accept that there would be hardship to the applicant or his family if the delegate’s decision were to be upheld. The Tribunal places little weight in exercising discretion not to cancel in this regard.

22. The applicant told the Tribunal that he would need another two years to complete his bachelor’s degree in engineering, and that he had successfully completed a Diploma of Engineering previously.  If he were able to complete the bachelor’s degree, this would enable him to return home and start an engineering business in the name of his grandfather. The Tribunal accepts the applicant’s desire to complete his studies to in some way fulfil his grandfather’s ambition to become an engineer, and that his grandfather’s passing had an impact on the applicant’s mental health, and places some weight in favour of the applicant in relation to some possible hardship in this regard.

23. The Tribunal notes that if the applicant’s visa is cancelled under s.48 of the Act he may have limited options available to him if applying for further visa in Australia. In addition, he will be subject to Public Interest Criterion 4013 which means that he may not be granted a temporary visa for three years from the date of cancellation.

    Circumstances in which the grounds for cancellation arose – applicant’s medical condition

24. In the applicant’s submission to the Tribunal at the hearing he stated that his grandfather was his mentor and that he was a farmer and because of his circumstances was not able to go overseas to travel and to study. He wanted to come to Australia to fulfil his grandfather’s dream of becoming an engineer. The applicant told the Tribunal that the reason he became un-enrolled was that after his grandfather passed away, he was notified by his father a week after his grandfather had passed, and he was distressed because of this delay. He returned to Sri Lanka and spent much of the time he was there with his grandmother at her house and visiting his grandfather’s grave and talking to him, and felt he was close to him there. He told the Tribunal that he thought he would be alright when he returned home in August 2016, but he was not. The applicant told the Tribunal he was suffering from depression, he did not attend classes, he did not submit assignments, and did notify the school of his issues or seek assistance from the school or a counsellor. The Tribunal accepts the applicant’s submission and places some weight in favour of exercising discretion not to cancel.

25. The applicant stayed in his room, he was not eating or sleeping and told the Tribunal he experienced suicidal thoughts.

26. His friends recommended he go to a psychologist which he did, and he attended (although at times infrequently) over three months, and he now realises that this has helped his condition and given him some coping strategies and he attends monthly.

27. His parents and his sister had heard that he was suffering from depression and was having suicidal thoughts and came to Australia to visit him and check on his welfare, staying for two weeks.  The applicant has not returned home at any stage except for when his grandfather passed away, and lives with friends from his region in Sri Lanka in a share house. He has the support of his housemates and his friend who appeared at the Tribunal and attended to support him.

28. The applicant provided the Tribunal with a Psychologist report from his treating Psychologist of over two years. The Psychologist, Rosemary Williams from Camberwell Road Medical Practice, is a Registered Psychologist and member of Australian Psychologist Society.  The report dated 4 June 2019 details the applicant’s presentation to the clinic on the 10 April 2017 suffering severe distress, the catalyst being the death of his grandfather on the 18 April 2016, and his inability to resolve his grief.  Ms Williams provided a clinical diagnosis and explanation of the applicant’s inability to engage in his studies or respond to notification of his enrolment being cancelled.

29. The applicant underwent Psychological testing on the 11 June 2017 and was diagnosed with Complex Bereavement Disorder and Comorbid depression, and a High level of Psychological stress.  Ms Williams notes that on the Kessler Psychological Distress Scale the applicant had a K10 Scale (43), which is described by the clinician as “very high”.

30. Ms Williams notes that the applicant had previously passed most of his subjects in 2016, but was assailed by mental illness in 2017, which caused severe impairment in the applicant’s academic and administrative function. She went on to explain in the report that after two years of treatment which at times had been onerous, the applicant had made progress and was ready to resume his studies. The Tribunal in considering this report acknowledges that the circumstances in this case appear to be genuine and beyond the applicant’s control. The applicant has taking steps to obtain treatment and make the recovery required to continue his study.  The Tribunal places significant weight in the applicant’s favour of exercising discretion not to cancel.

    Past and present behaviour                      

31. The applicant has been co-operative and courteous in all his dealings with the Tribunal.  No adverse information has been provided to the Tribunal and as such some weight is given in favour of the applicant in consideration of this factor.

    Persons in Australia whose visa would be cancelled under s.140.

32. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would or, may be cancelled under s.140. of the Migration Act 1958 (“the Act”). According to Department s records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

33. Accordingly, the Tribunal place neutral weight on this consideration.

    Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled

34. The circumstances of this case are such that they would not engage Australia’s International obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

    Other relevant factors

35. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.

36. Therefore, considering the circumstances, the Tribunal concludes that the visa should not be cancelled.      

    DECISION

37. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Donna Petrovich
    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.