Jayasinghe Arachchige (Migration)

Jayasinghe Arachchige (Migration) [2019] AATA 1782 (22 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Dilukshi Prasansani Jayasinghe Arachchige
CASE NUMBER:  1715192
HOME AFFAIRS REFERENCE(S):           BCC2017/1634963
MEMBER:Brendan Darcy
DATE:22 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

Statement made on 22 March 2019 at 10:48am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –whether the applicant has breached condition 8202– enrolled in a registered course – domestic violence victim– genuine student– decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 10 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant breached a condition imposed on her student visa and that the grounds for cancellation outweighed the ground for not cancelling. 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 20 March 2019 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.
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
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 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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant first arrived in Australia on 15 February 2013 when she was granted a Class TU Subclass 573 visa for higher education purposes.
According to the decision record submitted by the applicant at the time of this review application, the applicant was granted a subsequent Class TU Subclass 573 student visa for higher education purposes on 26 March 2016. The visa was set to expire on 30 August 2017. According to the decision record, the Provider Registration and International Student Management System (PRISMS) record pertaining to the applicant indicate that the applicant had not been enrolled in a registered course of study since 12 September 2016.
As discussed in the hearing, when the applicant first arrived in Australia she was enrolled in a Bachelor of Business and Commerce at Monash University. The enrolment was cancelled in favour of a Bachelor of Business (Professional Accounting) at RMIT University (RMIT) while on the first visa
The applicant was validly issued a Notice of Intention to Consider Cancellation (NOICC) on 19 June 2017
The applicant’s then representative requested for an extension to reply to the NOICC, which was granted for the new deadline: 3 July 2017
On 3 July 2017, the applicant’s responded to the NOICC invitation by submitting a range of documents and a statement. According to the decision record, it was unclear or unknown whether the applicant disputed the grounds for the cancellation.
The delegate proceeded to cancel the visa on 10 July 2017 and was issued a notification of the cancellation decision on the same date.
In the submitted legal submission dated 14 March 2019, it states that the applicant admitted to not being enrolled in a registered course for a period of time which resulted in her visa being cancelled.
The applicant applied to have the delegate’s cancellation decision reviewed by the Tribunal on 14 July 2017.
At the scheduled hearing, the applicant reiterated her admission outlined in the legal submission that she was not compliant with condition 8202 as outlined in the decision record.
There is no dispute that the applicant was not enrolled in a registered course between 12 September 2016 and the date of cancellation – a period of around ten months or 301 days. Accordingly, the applicant has not complied with condition 8202(2).
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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’
NOICC response
The applicant claimed in a statement as her response to the validly issued NOICC that she had been studying up until May 2016. In April 2016, the visa holder had experienced a relationship break down and fell into a depression and could not concentrate. The applicant was granted a deferment by her education provider. At the same time, her mother became sick and she had experienced some family problems. In July 2016, the applicant requested her education provider to assist her to find a work placement.
The response further stated that in February 2017 she applied to her education provider to convert her four year degree into a three year degree but the application was declined. The applicant claims that this indicates that the applicant’s whole purpose to travel to Australia was to obtain a degree from a reputed university.
The visa holder also argued that with her cultural background she was not in a position to return to her country without a degree and she will not able to face her parents and relatives. It is further argued that the applicant’s father’s health would be adversely affected by the cancellation of this student visa. Once the applicant completes her degree in Australia, she will be returning to home country to work in one of her uncle’s business, while supporting her father’s business.
The applicant also submitted copies of her Confirmation of Enrolment (CoE) for enrolment at Monash University.
An academic transcript from RMIT was also submitted. This indicated that the applicant had studies relevant but incomplete coursework in 2013, 2014 and 2015 but not in 2016 and that the applicant had passed most but failed about four of academic units.
Evidence submitted since the review application
On the Tribunal’s file are the following documents provided before the scheduled hearing:
The applicant provided a statutory declaration dated 14 March 2019 outlining the reason for not to cancel her visa. Of particular interest to the Tribunal had been the claimed that applicant had previously provided an explanation about extenuating circumstances contributing to her non-compliance had been stress, anxiety and depression. However the statement elaborated that she was in a violent and abusive relationship with her ex-partner. The relationship began in October 2014 and they moved into the same accommodation in January –March 2016. It is claimed the applicant’s then partner socially isolated her and physically assaulted her leading to stress and anxiety. The applicant states the violence was sometimes a week, sometimes a month or whenever he was angry. There was also verbal and emotional abuse on a regular basis.
On one occasion, it is claimed, the police came to their house after neighbours complained about the arguing but the applicant denied to the police there was any domestic violence. The ex-partner continued to be controlling and he broke my phone. By breaking the applicant’s phone she was unable to sort out her university enrolment.
The applicant claimed that the abusive relationship ended in December 2017 and the ex-partner retuned to Sri Lanka, leaving her to live peacefully. The applicant’s parents and family do not know about the relationship. The applicant claimed that she went to medical practitioners on occasions when her hearing was affected and when she was bruised. She also avoided classes as she did not want to present with visible signs of domestic violence such as black eyes.
The applicant claimed that she did not disclose the domestic violence to the previous agent as her ex-partner attended consultations.
A legal submitted dated 14 March was also submitted by the applicant’s authorised representative.
There are also submitted letters and emails between the applicant and the education provider, RMIT. Among other matters these letters and emails indicated that applicant sought a work placement on 21 March 2016; and that she attended a workshop on 6 April 2016; that she sought a leave of absence on 2 April 2016; and that the application for leave was unsuccessful on 6 April 2016. The Tribunal also notes a leave of absence was approved later in the year for May 2016
An undated statement from the applicant’s mother was also submitted to the Tribunal. It stated that the applicant’s mother is a heart patient and not in a mental position to alter any kind of sad emotional news. It states she is overwhelmed by the news of the cancellation of her daughter’s student visa given they had spent considerable money on her daughter’s tuition fees and living expenses. It further states that without a degree and a good job, the applicant’s father’s mental health will deteriorate and Sri Lankan society will shame the family.
Accompanying the document is a copy of a Sri Lankan issued passport of the applicant’s mother.
Health summaries from medical practitioners of the applicant:.
·On 7 July 2015, the summary presented with influenza and sore throat (she sought a second opinion on the same day and prescribed with PANDEING FORT AND PSEUDOOEPHEDRINE tablets);
·On 29 September 2015, the summary indicated the applicant experienced abdominal pain, and stress, anxiety, fatigue, and mood swings arising from money and exams;
·On 24 October 2015, the summary indicated the applicant had toe pain and was prescribed CICLOXACLIIN (antibiotics) tablets;
·On 27 October 2015, the summary indicated the applicant suffered from headache and itchy eyes;
·On 29 October 2015, the summary indicated the applicant had severe headaches with nausea and vomiting and was diagnosed with migraine;
·On 20 December 2015, the summary indicated the applicant fell of a ladder rupturing her left ear,
·On 16 February 2016, the summary indicated that the applicant was prescribed LEVLEN (contraceptive) tablets;
·On 19 February 2016, the summary indicated the applicant had dermatitis and was prescribed steroid cream;
·On 23 May 2016, the summary indicated the applicant presented with a cough, sore throat and body aches and was diagnosed with a virus;
·On 18 September 2016, the summary indicated the applicant had a bruise on her the back of her right leg and had been working on her feet all day;
·On 18 February 20147, the summary indicated the applicant had presented with a red spot on her eye and denied trauma and was diagnosed; and
·ON 19 January 2019 the summary indicated she had influenza.
The applicant submitted a special consideration supporting document signed by documents indicating the applicant was incapacitated between 27 October 2015 and 29 October 2015 due to a short term condition.
Evaluation of the evidence
The fact remain the applicant was non-compliant with condition 8202 for a considerable amount of time and it places some weight on this fact in favour of the visa not being reinstated.
During the hearing, the applicant provided consistent and plausible reasons that she wished to complete her Bachelor degree and to become a professional accountant so as contribute to her father’s business (import/export fishing) and her uncle’s business (wholesale/retail for fresh produce) as she had been undertaking bookkeeping before arriving in Australia. The applicant. She also said she hoped to work in Sri Lanka for a large accountancy firm or corporation. The applicant claimed she tried to undertake a work placement facilitated by the education provider. in one of Australia’s largest retailers, Coles, but was unsuccessful despite being shortlisted.
With regard to the applicant’s academic progress, the Tribunal noted in the hearing the applicant failed four units and that she came very close to finishing her coursework while holding her initial student visa. However she experienced an illness and was unable to attend exams. According to the applicant, the purposes of the second visa were to complete those units, as well as an elective, to graduate and to gain some work experience in Australia before leaving. She was able to obtain a further enrolment in the same degree at the same education provider for those purposes. The applicant claimed she completed the exams but admitted that she did not complete the elective as she wanted to undertake a work placement in the first semester (as outlined in the paragraph above). On balance the Tribunal accepts this based on the information contained in email exchanges between the applicant and the university.
The applicant provided copious emails and other evidence that she had engaged the university to complete her degree and that she participated in a range of workshops throughout 2016. She claimed that she assumed she was enrolled throughout 2016 and was unaware of her non-enrolment until January or February 2017. She further claimed that she tried to re-enrol in early 2017 but was directed by the university to delay the enrolment until closer to the second semester as the first semester was oversubscribed. She also provided evidence that she was applied for an enrolment in the same course prior to the issuing of the NOICC (which the Tribunal accepts).
There seemed to be a convoluted period of miscommunication and misunderstanding between the university’s administrators and the applicant throughout 2016. The applicant appeared to be offered conflicted or non-committal directions about the best way to complete her studies by the university – perhaps motivated by risk-adverse decision making within that administration. The purpose of her enrolment with RMIT and this visa under review was to complete her Bachelor of Business degree. It should have been clear and concise. When examining the emails, the Tribunal accepts the applicant was not clearly assisted by the university and that it contributed to her non-compliance with condition 8202.
There is little, moreover, in this academic record and these accepted claims to suggest to the Tribunal that the applicant is not a genuine student whose purpose of coming to Australia was to complete her full time studies. Accordingly the Tribunal places considerable weight on the evidence that the applicant is a genuine student motivated to complete her Bachelor degree for the claimed reasons.
Nevertheless it remained open to the applicant to enrol in another Bachelor’s degree albeit at a different education provider at any time after the enrolment was cancelled. Even so, it is accepted that it was understandable she wished to complete it at RMIT University to avoid or to mitigate her non-compliance. In themselves, these circumstances which led to the cancellation of her visa were not notably extenuating or beyond her control. In this regard, the Tribunal has considered whether other extenuating circumstances credibly existed.
The applicant argued that throughout the period of time she held this visa under review she was in a violent and abusive relationship with an ex-partner who is a Sri Lankan national. This claim was not raised by the applicant in her NOICC response. The applicant plausibly argued that her ex-partner was so controlling he attended her consolations with her then migration agent, which did not permit her to disclose these extenuating circumstances. Although she did not have any medical or other evidence, she claimed that she was living with considerable distress under these circumstances. While there is no third party, intervention orders or any documentary evidence to support her claim about this domestic abuse, the Tribunal accepts that it occurred in the manner in which has been consistently claimed in her salutatory declaration and at the Tribunal and by what can be gleamed from the medical evidence.
The Tribunal does not accept that the applicant’s extenuating circumstances that were completely beyond her control. It remained open to her to access the assistance and protection from the Victoria Police and a range of services providers and professionals whose duty it is to protect victims of domestic or intimate partner violence and abuse. It was open to her to confide in a medical professional or a university counsellor but she did not. The applicant claimed her ex-partner took her phone away making communication with the university difficult but this did not access to the internet or face-to-face representation. . Nevertheless, the Tribunal acknowledges that victims of domestic violence do not necessarily address their own safety and other obligations in straightforward, anticipated or coherent ways. This scrambled decision making can be for a range of cultural, societal, familial and psychological reasons. In combination with her convoluted miscommunications with the university administration and the undeniably psychological stress under which she had been living, the Tribunal accordingly assesses the circumstances to have been both extenuating and substantially beyond her control. For these reasons, the Tribunal places considerable weight on these factors, cumulatively considered, in favour of the visa not being cancelled.
The Tribunal accepts there will be degree of emotional, psychological and financial hardship to be faced by the applicant if she returns without completing her degree. It will entail a sense of failure and humiliation in herself and a sense of disappointment from her parents. She will be returning to a loving and supportive environment and opportunities to continue or complete her degree are open to her and she will be able to find work in her extended family businesses. However the Tribunal finds the degree of hardship - emotional, financial and psychological hardship – to be faced is assessed to be notable but not significant or severe, even when cumulatively considered. Accordingly the Tribunal places a notable amount of weight on these facotrs in favour of the visa not being cancelled.
There is no evidence before the Tribunal that the applicant has been non-compliant with other conditions imposed on her or that her past or present behaviour towards the Department or Tribunal reflect adversely upon her. The Tribunal places some weight on these factors in favour of the visa not being cancelled.
The applicant does not claim to have any dependants and has no strong ties to Australia. While she will return to Sri Lanka without a degree, the impact of the mandatory legal consequences from this cancellation are not great. Neither will the visa cancellation would lead to any breach of Australia’s international obligations. The Tribunal places no weight on these factors either for or against the visa being reinstated.

There are other relevant factors to consider.
Conclusion
The fact remains the most important factor in cancelling the applicant’s Subclass 573 student visa is her breach of condition 8202 at the time of her visa cancelled.
However, after weighing up all the available evidence, the Tribunal has placed considerable weight on the applicant being a genuine student and having extenuated circumstances leading to her non-compliance. The applicant credibly endured an emotionally and physically abusive relationship during the life of this visa under review. In combination with other factors, this primarily adversely affected her capacity to engage in the remainder of degree level studies and to remain compliant with condition 8202. The circumstances were substantially beyond her control.
The Tribunal finds there are more factors, cumulatively considered, in favour of having his visa reinstated than in favour of the visa remaining cancelled. The correct and preferable decision given the circumstances of this case is that the visa should not be cancelled.
The Tribunal notes that the applicant will have to apply for a new visa in a short period if she wishes to study in Australia and that she wishes to pursue vocational education and training. Due to changes in the Migration Regulations, neither Subclass 572 nor Subclass 573 visas are available to the applicant, as the Minister has made reductant Subclasses 570 through to 576 visas. They were replaced by Class TU Subclass 500 student visas on 1 July 2016.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.
Brendan Darcy
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.

[2019] AATA 1782

22 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Breach