Gunawardhana (Migration)

Gunawardhana (Migration) [2020] AATA 3270 (17 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kalhara Hasaranga Gunawardhana
CASE NUMBER:  1931985
HOME AFFAIRS REFERENCE(S):          BCC2019/3997572
MEMBER:Vanessa Plain
DATE:17 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 17 June 2020 at 1:14pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – unsatisfactory course progress – certification by the education provider – courses cancelled – gap in studies – family financial hardship – applicant charged with an offence – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, ss 19, 33
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8 Condition 8202
CASES
Maan v MIAC (2009) 179 FCR 581
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 4 November 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).
The delegate cancelled the visa on the basis that the applicant’s education provider certified that the applicant did not achieve satisfactory course progress in the registered course undertaken by the applicant. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 16 June 2020 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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
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?
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 full time registered course: 8202(2)(a)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
Visa condition 8202 is found at Schedule 8 of the Regulations and the clause that applies in this case is 8202(2)(c)(i) which provides:
8202
(1) The holder must be enrolled in a full‑time course of study or training if the holder is:
(a) a Defence Student; or
(b) a Foreign Affairs student; or
(c) a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)    must be enrolled in a full‑time registered course; and
(b)    subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)    must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)    is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)    changes their enrolment to a course at the Australian Qualifications Framework level 9.
In the present case, the applicant’s visa was cancelled on the basis that the education provider for the course being undertaken by the applicant, had certified the applicant as not achieving satisfactory course progress for s.19 of the Education Services for Overseas Students Act 2000 (the ESOS Act), and the relevant standard of the national code made by the Education Minister under s.33 of that Act.
For this requirement, it is the certification by the education provider as to breach of its course progress policies that constitutes the breach of condition, and not the unsatisfactory progress itself: Maan v MIAC (2009) 179 FCR 581 at [44]-[45].
The applicant’s visa was granted on 25 June 2018 for the purpose of studying a Master of Information Technology at Charles Sturt University.
Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that on 8 August 2019, the applicant’s enrolment in the Master of Information Technology was cancelled by Charles Stuart University due to ‘unsatisfactory course progress.’
Further information before the Department indicated that the applicant was interviewed by Victoria Police on or around 8 August 2019 and during that interview, stated to the Police that he had not attended university for the last two semesters.
On 25 September 2019, a Notice of Intention to Consider Cancellation of Visa (NOICC) was sent to the applicant.
By written response dated 31 October 2019, the applicant responded to the NOICC in which he agreed that there are grounds for cancellation. The applicant provided reasons to the Department for the breach of the visa condition, as summarized by the Delegate, as follows:
·‘The visa holder states in his response to the NOICC that since departing Sri Lanka, “I had to go through a lot of unexpected hardships, making my life at Australia as tough as possible and not letting me to focus on the actual purpose I visited Australia”. The visa holder acknowledges he “was not able to meet my educational targets as of now” and requests the Department “consider my actual situation and to assist not to cancel my visa in Australia”.
The Tribunal notes that the applicant identified a typographical error in the NOICC in relation to the date he lodged the application for a Student (subclass 500) visa. The applicant indicated to the Department that he intended to make an application under Freedom of Information legislation to investigate the error and requested an extension of time to complete his investigations. The Delegate’s decision record reveals that the Department responded to the applicant by reply email on 1 November 2019 acknowledging that the date recorded in the NOICC was erroneous. The applicant was also advised that as the error was not considered relevant to the grounds for cancellation as particularised in the NOICC, no further extensions of time would be granted. The Tribunal finds that the error in the NOICC is immaterial to the issue of breach of the visa condition.
At the hearing on 16 May 2020, the applicant admitted he breached his visa condition. The applicant gave evidence that was consistent with the reasons he gave to the Department in his response to the NOICC.
The applicant’s made the following statements in his oral evidence:
·He attended a few classes and completed assignments but was not in a position to attend the exam;
·He went to class in July 2018 and August 2018, which was when the semester started and was when he completed an assignment;
·He was not going to classes in 2019 (his COE was cancelled in August 2019);
·He stopped going to classes because he completed a Bachelor degree in Sri Lanka and wanted to do a Masters in Australia. At the time he applied he thought he has sufficient financial strength to be in Australia (for study), but his father died 12 years ago and he had to look after his mother and sister. He had a certain amount of financial strength when he came to Australia to study and funds to use for the course, but unfortunately he did not end up having the money he anticipated, which his mother did not know who to handle at the time. His mother was ill with stress. He had to stall his education and take a cash in hand job. This hindered his ability to attend classes. This was the reason he did not attend for two semesters.
·He did not ask the University for a deferral of his studies because it did not come to his mind to postpone his studies because he was under stress and had to survive;
·He has not been enrolled in any other course after 8 August 2019;
·He did not re-enrol in any other course because of financial stress, but he wants to complete his Masters otherwise he will not be able to explain the ‘gap’ in his life;
·In 2019, he was interviewed by the Police in relation to an alleged shop lifting offence. The police arrested the applicant and interviewed him at the police station. He was charged with an offence in relation to a shoplifting incident at Coles Supermarket for which he was convicted. He received a correction order for a duration of 6 months from the Moorabbin Magistrates’ Court. He was not fined; and
·The experience caused him stress. He attended to all appointments that he was supposed to (as a result of the penalty imposed by the Court).
Based on all the above matters, the Tribunal finds that the applicant has not complied with subclause (2)(c)(i) of condition 8202 because his enrolment in the Master of Information Technology was cancelled by Charles Stuart University due to ‘unsatisfactory course progress.’ The cancellation of the applicant’s enrolment for the stated reason is a certification by the University that the applicant that he has not achieved satisfactory course progress.
On the basis of the applicant’s own evidence, the applicant has not attended university in 2019 and as a result, has been certified by Charles Sturt University as not achieving satisfactory course progress in the Master of Information Technology.
The Tribunal is satisfied the applicant has not complied with subclause 8202(2)(c)(i) of condition 8202 attached to his Student visa and as such, the Tribunal is satisfied that the ground for cancellation under section 116(1)(b) of the Migration Act 1958 is made out.
Consideration of the discretion to cancel the visa
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’.
In his response to the NOICC, the Delegate summarised various reasons as to why the applicant believed his visa should not be cancelled. Those reasons are entirely consistent with the applicant’s oral evidence at hearing as set out above. The reasons, set out in the Delegate’s decision record, are as follows:
- His plan in travelling to Australia was, and continues to be to successfully obtain a master’s degree, then return to Sri Lanka and work in the IT industry. However, since arriving in Australia, the visa holder claims he has experienced significant personal hardships which have made it difficult for him to pursue this goal.
- The visa holder describes the personal circumstances which have led to his family in Sri Lanka being dependant on him; and explains how situations beyond his control have impacted on his mother’s health and caused financial burdens for him, his family and the family business. The visa holder adds that being in Australia has meant he has been unable to control or resolve these issues in an effective manner.
- The visa holder states that “the financial burdens of the family and the bad health of my mother set a drawback in my mind set to carry forward my studies at the university. The stress I had to face during this period can never be explained in words...I honestly do not want any visa issues in Australia. My path was blocked by several unexpected barriers. But however I do not want to lose my dreams”.
- The visa holder describes plans that have been put in place in Sri Lanka to help ease the financial burden he carries and states that once these plans are in place, he expects to be able to pay his tuition fees and commence studying again at university.
- The visa holder claims that if his visa is cancelled, he will be unable to achieve his dreams and will experience a level of pressure and depression that he believes he will be unable to deal with.
Purpose of applicant’s travel to and stay in Australia
The applicant arrived in Australia on 3 July 2018 as the holder of a student visa which was granted for the purpose of studying a Master of Information Technology at Charles Sturt University. His enrolment in this course was cancelled by the University on 8 August 2019 due to ‘unsatisfactory course progress’.
On account of the applicant’s own evidence at set out above, he has not studies at all in 2019. While the Tribunal acknowledges the applicant’s intention to study his Masters again, the Tribunal notes that the applicant has not provide a realistic indication as to when he expects this might occur and in any event, the applicant’s visa expires naturally in September 2020, which means the applicant would not be able to complete a Masters degree during the life of the visa.
On the basis of the above, the Tribunal is persuaded that the applicant’s purpose for his travel and stay in Australia is no longer in accordance with the purpose for which the visa was granted and has not been in accordance therewith for a significant period of time, namely since, 8 August 2019.
The Tribunal affords this consideration some weight in favour of cancelling the visa.
The extent of compliance with visa conditions
The applicant has not attended university in 2019 and as a result, has been certified by Charles Sturt University as not achieving satisfactory course progress in the Master of Information Technology and is therefore in non-compliance with subclause (2)(c)(i) of condition 8202.
Given the length of time that has passed since non compliance on or around 8 August 2019 when the applicant’s enrolment was cancelled, the Tribunal considers his non-compliance with condition 8202(2)(c)(i) to be significant.
The Tribunal acknowledges that the applicant did not intentionally breach the condition and clearly struggled with financial, family and legal difficulties which caused him some significant distress, however, the Tribunal is not satisfied, based on the applicant’s evidence, that his reasons for non-compliance were due to factors beyond his control.
There is no evidence before the Tribunal to indicate that the applicant has not complied with further conditions attached to the visa.
However, the Tribunal considers the requirement to not be certified by an education provider as achieving unsatisfactory course progress to be an important condition for the grant of the student visa and the Tribunal therefore gives this consideration some weight in favour of cancelling the visa.
The degree of hardship that may be caused to the visa holder and any family members
Records indicate that the applicant has resided in Australia since 3 July 2018 and does not have any dependents or family members onshore.
The Tribunal acknowledges that the applicant will suffer some emotional, financial and psychological hardship as a result of the cancellation of his visa. The Tribunal takes into account the applicant’s claims that he expects he will experience an unbearable level of pressure and depression that he does not believe he is equipped to deal (as contained in his NOICC response).
The Tribunal gives these considerations some weight against cancelling the visa.
The circumstances in which the ground for cancellation arose
The ground for cancellation arose because the applicant was certified by his education provider as not achieving satisfactory course progress in the Master of Information Technology and he is therefore in non-compliance with subclause (2)(c)(i) of condition 8202 attached to his visa.
The applicant has described in his response to the NOICC and in his oral evidence as set out above, the personal circumstances which he believes led to the grounds for cancellation arising. The Tribunal has considered the applicant’s reasons and acknowledges the applicant’s claims that there were circumstances beyond his control which lead to the ground for cancellation arising. However, the Tribunal is not persuaded that the grounds for cancellation arose due to circumstances beyond the applicant’s control.
When students apply for student visas, they represent to the Department that they have sufficient funds in place to pay for their tuition and living expenses in Australia. Further, it is apparent that the applicant’s failure to attend classes in 2019 was attributable to, in substantial part, circumstances of his own making, whereby he shoplifted goods from Coles Supermarket and was charged and convicted of that offence.
Based on the above, the Tribunal finds that the reasons for the breach of the visa condition were not due to matters that were reasonably outside of the control of the applicant and the Tribunal gives this consideration significant weight in favour of cancelling the visa.
The visa holder’s past and present behaviour towards the Department
The applicant responded promptly to the NOICC and there is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or Departmental staff.
The Tribunal gives this consideration a little weight against cancelling the visa.
Whether there are any persons in Australia whose visas would, or may, be cancelled under s140
The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act. The Tribunal therefore does not give this factor any weight for or against a decision to cancel the visa for this consideration.
Legal consequences of a decision to cancel the visa
If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if she does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent her from applying for certain visas while in Australia, and Public Interest Criterion 4013, which may exclude her from being granted a visa for a specific period of time in the future.
However, these are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were not reasonably outside of the control of the applicant, the Tribunal does not consider this to be manifestly unfair and the Tribunal therefore gives this consideration little weight against cancelling the visa.
Australia’s international obligations
There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before the Tribunal, the Tribunal does not give any weight for or against cancelling the visa for this consideration.
Any other relevant matters

The Tribunal has considered whether there are any other relevant matters. It invited the applicant to inform the Tribunal of any further matters.
The applicant stated that he had a definite plan initially, but he had difficulties. He stated he never stole anything in his home country, but unfortunately due to the stress he was under he felt compelled to do something which he now knows was wrong. He has no intention of settling in Australia, he wants to study and then return home. He realises his mistake and it is his sincere intention to complete his studies and he asked that the Tribunal consider this.
The Tribunal acknowledges and takes into account the applicant’s statement, however, weighed against the other matters set out above, it remains clear that the reason for the breach of the visa condition was not due to a matter beyond the applicant’s control.
The applicant’s lawyer expressed concerns with the translator. He said he speaks the same language as the translator and was of the view that the questions the Tribunal was asking were not properly translated. The applicant’s lawyer stated further that he hasn’t seen the applicant’s ‘criminal record’ and the Tribunal referred the lawyer to the matters set out in the Delegate’s decision record.
The interpreter informed the Tribunal that he ‘stands by’ his efforts in translating throughout the course of the hearing.
The Tribunal asked the applicant whether he was satisfied with the translator. The applicant stated that he was satisfied. The Tribunal observes that the applicant gave oral evidence which was entirely consistently with his response to the NOICC and at not stage throughout the course of the hearing, did the applicant express concern with the interpreter, which is in keeping with his acknowledgment at the end of the hearing that he was ‘satisfied’ with the interpreter.
It is clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Vanessa Plain
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)      a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)      must be enrolled in a full time registered course; and
(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2020] AATA 3270

17 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice