Hewawasam Sarukkalige (Migration)

[2019] AATA 5908

Hewawasam Sarukkalige (Migration) [2019] AATA 5908 (19 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sachin Vihanga Fernando Hewawasam Sarukkalige

Ms Nethmi Sandalika Pathirennehelage Dona

CASE NUMBER:  1711612

HOME AFFAIRS REFERENCE(S):         BCC2017/1181046

MEMBER:L. Hawas

DATE:19 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU 573 visa.

The Tribunal has no jurisdiction with respect to the        second named applicant.

Statement made on 19 August 2019 at 12:43pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course for eight months – enrolment cancelled – non-payment of fees – illness in family – financial difficulties – lack of motivation – steps to re-enrol taken – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 359, 360
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

Application for review

1. The first named applicant (hereinafter referred to as the applicant) is a 25 year old man from Sri Lanka. He came to Australia on 24 September 2015 on a Subclass 573 Higher Education Sector visa. By written decision dated 25 May 2017, a delegate of the Minister for Immigration and Border Protection cancelled the applicant’s visa. By this application, the applicant seeks a review of that decision.

2. The applicant gave the Tribunal a copy of the delegate’s decision with his application for review.

3. The delegate cancelled the applicant’s visa under s.116(1)(b) of the Migration Act 1958 (Act) on the grounds that he breached condition 8202(2)(a) of his visa. That condition required the applicant to remain enrolled in a registered course. The delegate found that the applicant was not enrolled in a registered course between 7 September 2016 and 14 May 2017. 

4. In this review, the Tribunal must decide whether that ground for cancellation is made out, and if so, whether the applicant’s visa should be cancelled.

5. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the applicant (the first named applicant). The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the cancellation of the second named applicant’s visa under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.  

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

Procedural matters

1. By email letter to the applicant’s authorised recipient (his migration agent at the time) dated 24 January 2018, the Tribunal invited the applicant under s. 359(2) of the Act to give information about:

   (a)whether he was enrolled in a registered course between 7 September 2016 and 14 May 2017;

   (b)any circumstances in which the ground for cancellation arose;

   (c)whether he has a compelling need to remain in Australia;

   (d)his compliance with visa conditions generally, including any previous visas he has held;

   (e)the hardship that may be caused to him, his family, or anyone else connected to the visa if his visa is cancelled; and

   (f)any other matter he considers relevant.

2. In its letter, the Tribunal stated that the information should be received by 7 February 2018. The applicant did not respond to the letter and did not provide the information the Tribunal requested in the letter by 7 February 2018.

3. As the applicant failed to give the requested information before the time for giving it had passed, s. 359C(1) of the Act operates to allow the Tribunal to make a decision on the review without taking any further action to obtain the information. Further, as s. 359C(1) applies to the applicant, s. 360 operates to deprive the applicant from the opportunity to appear before the Tribunal.

4. In any event, the Tribunal did make a further attempt to obtain the information. It sent another letter directly to the applicant dated 19 July 2019 in which it invited the applicant again to give it the information it had requested in its 24 January 2018 letter.[1] In that letter, the Tribunal informed the applicant that as it did not receive from the applicant the information requested in its 24 January 2018 letter within the period allowed (by 7 February 2018) he had lost his right under the Act to a hearing. But the Tribunal invited the applicant again to give it the information (and any other information he considered relevant) by 2 August 2019.

   [1] By this time the applicant had notified the Tribunal that he had withdrawn his previous authorisation of another person (his migration agent) to receive correspondence on his behalf, and he directed that all correspondence be sent to him directly at his nominated email address. The Tribunal sent the 19 July 2019 letter to the applicant at his nominated email address.

5. The applicant responded by way of letter to the Tribunal dated 2 August 2019 in which he provided some information to the Tribunal and attached some documents. The Tribunal has considered the content of that letter and the attachments. The substance of that letter is referred to below.

6. In the Tribunal’s letter to the applicant dated 19 July 2019, it also gave the applicant under s. 359A of the Act particulars of information it had accessed on the Provider Registration and International Student Management System (PRISMS). The Tribunal asked the applicant to comment or respond to the information by 2 August 2019. Although by his letter dated 2 August 2019 the applicant responded to the Tribunal’s 19 July 2019 letter in time, he did not comment or respond to the information. The information is referred to further below.    

7. The Tribunal has made its decision in this review on the information before it.

Did the applicant fail to comply with condition 8202?

1. The issue in the present case is whether the applicant, as the holder of a 573 student visa, has not complied with condition 8202 of his visa as set out in Schedule 8 to the Migration Regulations 1994 (Regulations). If the applicant has not complied with that condition, under s.116(1)(b) of the Act, the visa may be cancelled.

2. 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).

3. In this case, the applicant’s visa was cancelled because he was not enrolled in a registered course between 7 September 2016 and 14 May 2017 in breach of condition 8202(2)(a) of his visa.

4. In the notice of intention to consider cancellation of the applicant’s visa dated 15 May 2017[2], which the delegate sent to the applicant, the delegate stated inter alia:

   Condition 8202(2)(a) states the visa holder meets the requirements if the visa holder is enrolled in a registered course. Based on the evidence available to me in the Provider Registration and International Student Management System (PRISMS), it appears you have not been enrolled in a registered course of study since 7 September 2016. Therefore, it appears you do not meet the requirements of condition 8202(2)(a).

   [2] Department file folio 7-9.

5. The applicant responded to the Department’s notice of intention to consider cancellation by letter to the department dated 21 May 2017.[3] The delegate reproduced the content of the applicant’s response in the cancellation decision. In his response, the applicant stated inter alia:

   ………

   My purpose of travel and stay in Australia

   I came to Australia after completing my Business studies in Sri Lanka. My study history was clean and good till I came to Australia and faced the family issue. When I came from Sri Lanka I was planning to build my career as an Accountant and since I could not grasp the content only I change my field of studies. However, some unforeseen matters interrupted my studies and I failed to comply. I do accept the fault for not complying with the visa condition 8202 and I must say I am totally responsible for it no matter what the circumstances led me to it. I believe that you will agree with me that the circumstances which led me for the changes in my studies were beyond my control. [Applicant’s emphasis]

   ………

   [3] Department file folio 16 and 17.

6. Further, in his letter to the Tribunal dated 2 August 2019 in response to the Tribunal’s letter dated 19 July 2019, the applicant stated that he was not enrolled in a registered course between 7 September 2016 and 14 May 2017. He stated that this was due to circumstances beyond his control.  

7. As set out in paragraph 17 above, the delegate stated in the cancellation decision that the information in PRISMS recorded that the applicant was not enrolled in a registered course of study from 7 September 2016. The delegate found that the applicant was not enrolled in a registered course from that date to 14 May 2017 being the date before that of the Department’s notice of intention to consider cancellation (15 May 2017).

8. In his response dated 21 May 2017 to the notice of intention to consider cancellation, the applicant admitted that he did not pay his semester fees to Holmesglen Institute (Holmeslen) where he was studying hospitality. He said also that Holmesglen notified him that it would be cancelling his enrolment. The applicant went on in his response to accept ‘fault for not complying with condition 8202’. In his letter to the Tribunal dated 2 August 2019, the applicant repeated his admission that he was not enrolled in a registered course between 7 September 2016 and 14 May 2017.

9. On the evidence before the Tribunal, it is satisfied that the applicant was not enrolled in a registered course from 7 September 2016, and he remained without enrolment in a registered course until 14 May 2017. Accordingly, the Tribunal finds that the applicant did not comply with condition 8202(2)(a) of his visa during that time. On those grounds, the Tribunal finds that the ground for cancelling the applicant’s visa under s. 116(1)(b) of the Act has been made out.     

Consideration of the discretion to cancel the visa

1. Having found that the applicant did not comply with a condition of his 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’.

2. As the Applicant did not respond to the Tribunal’s letter dated 24 January 2018 seeking information under s. 359(2) of the Act, the applicant lost his right to a hearing. From there, the Tribunal was required to determine the review on the information on the Department’s file, the information on the Tribunal’s file, and the information the applicant gave the Tribunal. The information before the Tribunal reveals that:

   (a)The applicant was granted his TU 573 visa on 21 September 2015 (the second applicant was granted her secondary 573 visa on the same date);[4]

   [4] Department file folio 54.

   (b)The applicant arrived in Australia from Sri Lanka on 24 September 2015;[5]

   [5] Movement records on Tribunal file at folio 21.

   (c)Later in September 2015, the applicant commenced a Certificate III in Accounts Administration at Holmesglen, which he completed on 31 January 2016. He was then scheduled to commence a certificate IV in Accounting at Holmesglen, then a Diploma of Accounting, then a Bachelor of Business, all at the same school. On 15 February 2016, the applicant ceased his Certificate IV in accounting and changed to a Certificate IV in Commercial Cookery at Holmesglen. The applicant’s enrolment in the Certificate IV in Commercial Cookery was cancelled in semester one 2016 for non-payment of fees and he ceased to be enrolled in any registered course of study between 7 September 2016 and 14 May 2017;[6]

   [6] Delegate’s decision at page 10, PRISMS record on Tribunal’s file at folio 23 and applicant’s response dated 21 May 2017 to Notice of Intention to Consider Cancellation of his visa at 16-17 of the department file.

   (d)On 3 May 2017, the Department sent the applicant an email asking him to confirm his email address for correspondence from the department;[7]

   [7] Department file folio 2.

   (e)The department followed up that communication with its notice of intention to consider cancelling the applicant’s visa dated 15 May 2017, which it sent to the applicant’s confirmed email address;[8]

   [8] Department file folio 7-9.

   (f)The applicant responded to the notice of intention to consider cancellation by letter dated 21 May 2017;[9]

   [9] Department file folio 16-17.

   (g)By letter dated 16 May 2017, the applicant received an International Student Offer and Acceptance Agreement from Academies Australasia Polytechnic offering the applicant a place in the following courses:

   (i)Certificate III in Commercial Cookery – 15/05/2017 – 29/06/2018;

   (ii)Certificate IV in Commercial Cookery – 02/07/2018 – 14/12/2018;

   (iii)Diploma of Hospitality Management – 14/01/2019 – 05/04/2019; and

   (iv)Bachelor of Tourism and Hospitality Management – 22/07/2019 – 09/07/2021;

   (v)The fees to be paid in advance for those courses was $4,240, which the applicant claims he has paid;[10]

   (h)The applicant applied for this review on 31 May 2017; and

   (i)On 7 June 2017, the department granted the applicant a WE 050 Bridging Visa E. That visa contained conditions that the applicant not work and not study while in Australia on that visa.[11]

   [10] Applicant response dated 21 May 2017 to the department’s notice of intention to consider cancellation on the Department’s file at folio 16 and 17 and the attached Academies Australasia Poytechnic letter of offer to the applicant dated 16 May 2017 at folios 36 and 37.

   [11] The department’s records on the Integrated Client Services Environment (ICSE) confirm that the applicant’s bridging visa was subject to those conditions.

3. According to the timetable set out in paragraph 24(g) above, if the applicant commenced his proposed studies at Academies Australasia Polytechnic, he would by now have completed his Certificates III and IV in Commercial Cookery and his Diploma of Hospitality Management. He would by now have commenced his Bachelor of Tourism and Hospitality Management.   

4. The information in PRISMS also records the following:

   (a)The applicant’s Certificates III and IV in Commercial Cookery at Academies Australasia Polytechnic were ‘cancelled’ as was his Diploma of Hospitality Management Course; and

   (b)The applicant’s Bachelor of Tourism and Hospitality Management remains approved. An overseas Student Confirmation of Enrolment in PRISMS provides the applicant was enrolled in and scheduled to commence that course on 22/07/2019 and complete it on 09/07/2021, which is consistent with the timetable for that course in paragraph 24(g) above. The Confirmation of Enrolment provides that the applicant has pre-paid $2,000 in tuition fees.

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

1. The purpose of the applicant’s travel to and stay in Australia on his 573 visa was to enable him to undertake study here. He completed a Certificate III in Accounts Administration at Holmesglen on 31 January 2016. In February 2016, he changed his course of study from accounting to commercial cookery at Holmesglen but he did not pay the course fees and did not complete any commercial cookery courses at that school. Holmesglen cancelled the applicant’s enrolment on 7 September 2016. He remained without enrolment in a registered course of study until at least 14 May 2017. In his response dated 21 May 2017 to the notice of intention to consider cancelling his visa, the applicant set out the course upon which he embarked in early April 2017 to re-enrol in a registered course of study. That course of conduct culminated in him enrolling for the commercial cookery and hospitality courses at Academies Australasia Polytechnic as set out in paragraph 24(g) above.

2. In his letter to the Tribunal dated 2 August 2019, the applicant stated that he had a compelling need to remain in Australia because he wanted to complete his studies here before returning to Sri Lanka. The applicant did not state what studies he wanted to complete now but the Tribunal takes the applicant’s statement to mean the proposed course of study set out in paragraph 24(g) above (but with reset commencing and finishing times for the courses given the time the applicant’s visa has been cancelled) or some similar course of study. The applicant stated that if he returned to Sri Lanka without having obtained a qualification in Australia, he would feel as though he had failed his parents and his wife (the second applicant). He said he could not face his parents if he returned without having completed his planned studies in Australia.

3. The Tribunal has taken into account the applicant’s efforts to re-enrol in a registered course of study from April 2017 and his ultimate enrolment in the courses set out in paragraph 24(g) above. The Tribunal has also taken into account the applicant’s wish to remain in Australia to continue his studies, the current Confirmation of Enrolment in PRISMS that provides the applicant remains enrolled in and was to commence a Bachelor of Tourism and Hospitality Management at Academies Australasia Polytechnic on 22 July 2019, and that the applicant has pre-paid some of the tuition fees. The Tribunal weighs those matters against exercising its discretion to cancel the applicant’s visa.

4. But the Tribunal considers those matters to be outweighed by the gravity of the applicant’s breach of condition 8202(2)(a). The applicant was not enrolled in a registered course for about eight months between 7 September 2016 and 14 May 2017. During that time, he was not fulfilling the purpose of his visa. 

5. Other than to study, the applicant does not have a compelling need to remain in Australia. The applicant’s lack of engagement with his study between 9 September 2016 and 14 May 2017 was substantial. The Tribunal weighs it heavily in favour of exercising its discretion to cancel the applicant’s visa.  

The extent of compliance with visa conditions

1. Other than the applicant’s breach of condition 8202(2)(a) of his visa in issue, the applicant has not breached any other condition of his visa. The Tribunal weighs that against exercising its discretion to cancel the applicant’s visa.

Degree of hardship that may be caused (financial, psychological, emotional, or other hardship) to the visa holder and any family members

1. If the applicant’s 573 visa is cancelled, subject to any application he might make to extend his stay in Australia, he will not have the authority to remain and he will have to return to Sri Lanka.

2. In his response to the notice of intention to consider cancellation of his visa, the applicant stated as follows on hardship:

   If my visa get cancelled I will have to go home. That will bring to an end my studies as these opportunities are not available in my home country. If I go back now I will not have a qualification to start a career. Also on top of the health issues my mother has faced and is facing at the moment and the stress my father is going through as a result of my mother’s condition they might find it difficult to engross the shocking news if I have to abundant my studies in Australia. This will ruin the future of me and out entire family as I am the only child in the family.

1. In his letter to the Tribunal dated 2 August 2019, the applicant stated that his ill father would suffer hardship if his visa remained cancelled and he returned to Sri Lanka. The claimed hardship follows from the applicant returning without having completed his planned studies in Australia.

2. The Tribunal has taken into account the hardship the applicant has claimed in his letters referred to in paragraphs 34 and 35 above

3. The Tribunal accepts the applicant will not have the same study options in Sri Lanka that he has in Australia, and for that reason the applicant’s return to Sri Lanka without having completed his planned studies in Australia will visit some hardship on him and his parents.

4. Further, if the applicant returns to Sri Lanka without completing his planned studies in Australia, his parents will have spent money on educating him in Australia but he would not have obtained an Australian qualification other than the Certificate III in Accounts Administration. The Tribunal  accepts that the applicant’s parents, who he says are suffering from health problems and managing stress, might be shocked or upset by that outcome. That will cause the applicant’s parents some hardship.

5. If the applicant does not want to study on his return to Sri Lanka but wants to work, his job prospects in Sri Lanka would not be as good as they would be had he obtained more Australian qualifications. Reduced employment prospects will visit obvious hardship on the applicant and his parents. The applicant will require more support while unemployed and the burden will fall on his parents.

6. The Tribunal weighs the matters in paragraphs 37 to 39 above against exercising its discretion to cancel the applicant’s visa.

7. But the applicant is 25 years old. He is young enough to continue his studies in Sri Lanka or in another country if that is what he chooses and if his parents are able to give him the necessary financial support in that endeavour.  If he wants to work in Sri Lanka, he is young enough to establish a career for himself. Those matters reduce the weight the Tribunal places on the hardship claims the applicant has advanced.

Circumstances in the which the ground for cancellation arose. Were the circumstances beyond the applicant’s control?

1. In his response to the notice of intention to consider cancellation of his visa, the applicant said the following about the circumstances in which his visa was cancelled:

   (a)After completing his Certificate III in accounts administration at Holmesglen in late January 2016 he discussed his further study with his parents in Sri Lanka. He decided to cease his accounting studies and commence a course of study in hospitality;

   (b)Subsequently, he enrolled in a Certificate IV in Commercial Cookery course at Holmesglen (which course was to commence on 31 January 2016);

   (c)At around the same time, his father ran into financial difficulty because he had to support the applicant’s sick mother. As a result, his parents could not support him financially in Australia to the same degree that they had in the past and he could not afford to pay tuition fees for his Certificate IV in Commercial Cookery;

   (d)He spoke to people at Holmesglen about his financial predicament and they recommended he enrol in an English course but he was not prepared to spend his parents’ money on an English course;

   (e)His mother’s health problems dampened his willingness to study;

   (f)In April 2017, he began looking for alternative courses at other colleges; and

   (g)His father’s financial situation has recovered and for that reason he was able to enrol in the Commercial Cookery courses at Academies Australasia Polytechnic.[12]

   [12] Applicant response dated 21 May 2017 to the department’s notice of intention to consider cancellation the Department’s file at folio 16 and 17.

2. With his response to the notice of intention to consider cancelling his visa, the applicant sent the department evidence about his mother medical condition in the form of medical certificates. The certificates report on the condition of Manori Nirosha.[13] 

   [13] Department’s file at folio 12-15 and 18-20.

3. In his letter to the Tribunal dated 2 August 2019, the applicant claimed that while he was studying in Australia, his father (as opposed to his mother) fell ill. As a result, his father could no longer afford to support him financially in Australia, and as a result his student visa was cancelled. The applicant attached to his 2 August 2019 letter medical certificates about ‘his fathers’ condition. The certificates attached to the applicant’s letter report on the condition of Manori Nirosha. The medical certificates report on the condition of a female (they use the word she). The medical certificates provide that Ms Nirosha underwent an abdominal hysterectomy in the middle of 2016. The applicant also sent the Tribunal a letter from Ms Nirosha addressed to the department in which she explained her health problems in 2016 and how that affected the applicant and his studies.

4. The Tribunal has taken into account the medical certificates and other documents the applicant has sent the department and the Tribunal about the condition of Ms Nirosha in 2016 and the affect on the applicant.

5. Although the applicant remained enrolled in the Certificate IV Commercial Cookery course at Holmesglen until 7 September 2016, the applicant did not complete any meaningful study in that course. The information in PRISMS set out in the delegate’s decision provides that the applicant failed to meet satisfactory course progress in semester one 2016.[14] The applicant effectively accepted that in his response to the notice of intention to consider cancellation of his visa where he said that after his mother encountered her health problems and his parents the financial problems he lost his willingness to study.

   [14] Page 10 of delegate’s decision.

6. The Tribunal accepts that the health problems the applicant’s mother suffered and the financial problems his father endured in 2016 were beyond his control. The Tribunal accepts that those health problems reduced the applicant’s ability to focus on his studies in early to mid 2016. The Tribunal also accepts that the reduced ability of the applicant’s parents to support him financially in Australia contributed substantially to his enrolment at Holmesglen being cancelled. The Tribunal weighs the predicament of the applicant’s parents throughout 2016 against exercising its discretion to cancel the applicant’s visa.

7. But as the delegate noted in the cancellation decision, the applicant would have been required to provide evidence to the Department that he had sufficient means to cover the costs of his proposed course of study in Australia, accommodation costs in Australia for his proposed stay, and health costs in order to qualify for a 573 visa. The delegate noted that at the time of his visa grant, as an international student, the applicant provided (or would have been required to provide) a financial guarantee to the department that he could meet the costs of his study and stay in Australia until at least August 2016. [15] The Tribunal considers that citing financial hardship as a reason for not paying course fees carries little weight given the department requires evidence of capacity to pay such fees before granting a 573 visa. That reduces the weight the Tribunal places on the reduced capacity of the applicant’s parents to support him financially in Australia during 2016.  

Past and present behaviour towards the Department    

[15] Page 11 of delegate’s decision.

1. There is no evidence before the Tribunal that the applicant has not cooperated with the Department. The Tribunal weighs that against exercising its discretion to cancel the applicant’s visa.

Whether there would be consequential cancellations under s. 140

1. The second applicant’s visa was cancelled consequentially under s. 140 of the Act because of the cancellation of the applicant’s visa. In the cancellation decision, the delegate noted that the second applicant was granted her visa by reason of being part of the applicant’s family unit. It follows that it is reasonable and a consequence intended under s. 140 that if the applicant’s visa is cancelled the second applicant’s visa will also be cancelled.

2. There is no evidence before the Tribunal to the effect that the second applicant has made some application or claim for a primary visa. Further there is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in a breakup of the relationship between the applicant and the second applicant.

3. Accordingly, this consideration does not carry any weight either in favour or against cancelling the applicant’s visa.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

1. The applicant is currently on a WE 050 bridging visa E pending the outcome of this review. In the absence of the Minister granting the applicant another visa, he will not have authority to remain in Australia once the review process has been exhausted. If that is the case, the applicants will have the opportunity to depart Australia. Whilst their continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

2. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include student visas. Consequently, this limits what visa applications the applicant can make whilst onshore. The Tribunal has taken that potential limitation on the applicant’s future visa applications actions into account and it weighs that against exercising its discretion to cancel the applicant’s visa.

3. As the delegate noted, the cancellation of the applicant’s visa will attract the application of Public Interest Criteria 4013. PIC 4013 will operate to mandate that any visa application made within three years of the applicant’s visa being cancelled will be refused unless one of the stated exceptions apply.

4. The Tribunal has taken into account that potential restriction on the applicant’s future Australian visa applications and it weighs that against exercising its discretion to cancel the applicant’s visa. The Tribunal does not have sufficient evidence before it to assess whether the applicant is likely to avail himself of an exception to the operation of the PIC such as compelling or compassionate circumstances justifying a further visa grant. But the Tribunal has taken into account the possibility that the applicant will not be able to make out an exception to the operation of the PIC and also weighed that against exercising its discretion to cancel the applicant’s visa.

5. But to be balanced against that is the plain intent of the PIC to restrict future entry into Australia by people affected with the stated risk factors. That must also be considered in this review.

Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

1. The Tribunal has considered Australia’s international obligations. On the evidence before the Tribunal, Australia’s international obligations are not engaged by the cancellation of the applicant’s visa.

Other matters

1. The information about the applicant in PRISMS reveals that the applicant’s enrolment in the courses at Academies Australasia Polytechnic set out at paragraph 24(g)(i)-(iii) above were cancelled. In its letter to the applicant dated 19 July 2019, the Tribunal under s. 359A of the Act:

   (a)Gave the applicant particulars of that information in that it stated that the information available to it in PRISMS revealed that the applicant’s enrolment in those courses had been cancelled. The Tribunal also stated that the information in PRISMS revealed the applicant had not been enrolled in a registered course between 15 May 2017 (when he was to commence the Certificate III) and 5 April 2019 (when he was to finish the Diploma);

   (b)Stated it considered the information would be a reason, or a part of the reason, for affirming the delegate’s decision;

   (c)Stated that the information was relevant to how the Tribunal should exercise its discretion because it was relevant to the purpose of the applicant’s travel and stay in Australia and whether he had a compelling need to remain in Australia; and

   (d)Invited the applicant to comment on or respond to the information by 2 August 2019.

2. In his letter to the Tribunal dated 2 August 2019, the applicant did not comment on or respond to the information.

3. However, the Tribunal does not weigh that information in favour of exercising its discretion to cancel the applicant’s visa, and it does not take the information into account in this review. Although the applicant did not say so in response to the Tribunal’s letter of 19 July 2019, the conditions of the applicant’s bridging visa E, upon which he has been in Australia since 7 June 2017,  prevented him from undertaking any study while in Australia on that visa. It follows then that the applicant could not have undertaken study in the cancelled courses and could not have completed them. That the applicant’s enrolment in those courses has been cancelled is unremarkable. On reflection, the Tribunal considers the cancelled courses to be irrelevant to this review.

4. On the evidence before the Tribunal, the applicant began to take active steps to re-enrol in a registered course of study and regularise compliance with his visa conditions before the department first contacted him in writing about possible non-compliance. The department first contacted the applicant on 3 May 2017 by email in which it asked him for consent to receive correspondence by email because the department wanted to send him a letter about his visa.[16]  The applicant gave consent the same day by return email.[17] The department then sent the applicant its notice dated 15 May 2017 of notice of intention to consider cancellation of his visa.

   [16] Department file folio 2.

   [17] Departments file folio 4.

5. The applicant claims that:

   (a)He wrote to Ashton College in 11 April 2017, the Front Cooking School on 19 April 2017, and Altec Education Centre on 9 May 2017 about possible future study at those schools. He did not enrol in courses at those schools because they could not provide programs to bachelor’s degree level;

   (b)On 16 May 2017, Academies Australasia Polytechnic offered him a full program to bachelor’s degree level, and he enrolled at those courses and paid some fees on 15 May 2017.[18]

   [18] Applicant’s response dated 21 May 2017 to the notice of intention to consider cancellation of his visa in department’s file folio 21-22.

6. The department’s file contains:

   (a)A letter of offer from the Front Cooking School to the applicant dated 19 April 2017;[19]

   (b)A letter of offer from Altec Education Centre to the applicant dated 9 May 2017;[20]

   (c)A letter of offer from Academies Australasia Polytechnic to the applicant dated 16 May 2017 for the course of study set out in paragraph 23(g) above. The applicant had signed that letter of offer.[21]

   [19] Department file folio 27-32.

   [20] Department file folio 34-35.

   [21] Department file folio 37.

7. The Tribunal is satisfied that from April 2017, the applicant took steps to enrol in a registered course of study. He began to take those steps before the department first contacted him about his visa in early May 2017. The applicant ultimately obtained enrolment in the registered course of study set out in paragraph 24(g) above, and he remains enrolled in the course at 24(g)(iv) (although prevented by the conditions of his bridging visa from undertaking any study in that course). The Tribunal weighs that against exercising its discretion to cancel the applicant’s visa.

Conclusion on discretion

1. The Tribunal has considered the contents of all the documents before it carefully. It has considered all the matters in favour of exercising its discretion to cancel the applicant’s visa and all the matters that weigh against it exercising its discretion that way.

2. The Tribunal considers the applicant’s breach of condition 8202(2)(a) of his visa to be a substantial one. He was not enrolled in a registered course for about eight months between 7 September 2016 and 14 May 2017. The Tribunal weighs that heavily in favour of exercising its discretion to cancel the applicant’s visa. The Tribunal has considered the applicant’s explanation for his enrolment at Holmesglen being cancelled, primarily his mother’s health problems and the financial difficulties his father endured during 2016. The Tribunal has weighed those matters against exercising its discretion to cancel.

3. On the evidence before the Tribunal, after the applicant’s enrolment at Holmesglen was cancelled on 7 September 2016, he did not take any steps to enrol in a registered course again until April 2017. Ultimately, he obtained enrolment at Academies Australasia Polytechnic on about 16 May 2017, just before the delegate cancelled his visa. The applicant was not able to commence his proposed studies at Academies Australasia Polytechnic given his visa was cancelled. The Tribunal has weighed against exercising its discretion to cancel the applicant’s visa the applicant’s endeavour to obtain enrolment in a registered course after his enrolment at Holmesglen was cancelled and his claim that his parents’ financial situation has now stabilised such that they are able to support him in completing his proposed studies in Australia. The Tribunal has also weighed various matters the same way as set out above.

4. But the Tribunal considers that, on balance, the substantial breach by the applicant of condition 8202(2)(a) of his visa, which weighs heavily in favour of the Tribunal exercising its discretion to cancel the applicant’s visa, outweighs the matters in favour of the Tribunal exercising its discretion the other way. The Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s visa.

Decision

1. The Tribunal affirms the decision to cancel the applicant’s Class TU 573 visa.

2. The Tribunal has no jurisdiction with respect to the second applicant.

L. Hawas
Senior 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.