Jayaweera (Migration)

[2021] AATA 1307

Jayaweera (Migration) [2021] AATA 1307 (11 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nadun Oshadha Niyomal Jayaweera

CASE NUMBER:  1816741

HOME AFFAIRS REFERENCE(S):          BCC2018/194825

MEMBER:Donna Petrovich

DATE:11 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 11 March 2021 at 12:51pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – applicant was not enrolled in a registered course of study – breached condition 8202 – failed to commence or complete courses–decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 June 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 not enrolled in a registered course of study between 25 July 2017 and the 26 March 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 9 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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?

7. 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).

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

9. At the hearing, the Tribunal heard that the applicant had been unable to pay for his fees in full and had entered into a payment arrangement with the University, but was unable to maintain payment for his enrolment. The applicant told the Tribunal that he commenced a Diploma of Computing on 20 October 2015, which he did not complete. He then enrolled in a Bachelor of Technology which he did not commence.  His academic record shows that he commenced a Certificate III Commercial Cookery (not complete), and enrolled in a Certificate IV Commercial Cookery (not commenced), Diploma of Hospitality Management (not commenced), and Bachelor of Tourism and Hospitality Management (not commenced).  Since his enrolment was cancelled on 14 July 2017, the applicant has not recommenced study in a CRICOS registered course.

10. 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

11. 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

12. The applicant told the Tribunal that he came to Australia with the intent of studying a Diploma of Computing, which he commenced on 20 October 2015, but was unable to complete this and other courses, which he either failed to commence or complete.  The applicant told the Tribunal that he was working at Coles part time and that he was sharing a house with his girlfriend.  The Tribunal has considered the length of time that the applicant has remained in Australia and remained un-enrolled in a registered course of study, which was the purpose of him obtaining a visa in October 2015. The Tribunal has also considered that the applicant’s lack of academic achievement in over five years of his stay indicates that his original intent has changed and therefore his need to travel and remain in Australia is no longer valid. The Tribunal places no weight in favour of the applicant in this regard.

    The extent of compliance with visa conditions

13. The applicant did not comply with his visa condition by maintaining his enrolment in a registered course of study for a period of eight months from 25 July 2017 to 26 March 2018.  The Tribunal considers this timeframe a significant breach and therefore places weight against the applicant in considering discretion not to cancel.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

14. The Tribunal heard little evidence of the hardship that the applicant would experience if the delegate’s decision were to be upheld. The applicant told the Tribunal that his parents in Sri Lanka would be disappointed in his lack of academic achievement. 

15. The Tribunal notes that in the event that 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 might not be granted a temporary visa for three years from the date of cancellation.

16. Never the less, the Tribunal acknowledges that if the applicant’s visa is cancelled, he will suffer some hardship by having to return to Sri Lanka, without having achieved a qualification, and as such has given some weight to the hardship that the applicant may suffer in the event that his visa is cancelled.

    Circumstances in which the cancellation arose

17. The applicant found himself unable to pay for his enrolment and entered into a payment plan with the education provider, but has now remained un-enrolled since 14 July 2017, after he had enrolled in a number of courses which were either not commenced or not completed. The Tribunal places no weight in favour of the applicant in exercising discretion not to cancel.

    Past and Present behaviour of the visa holder towards the department

18. The applicant has been cooperative 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 to him in consideration of this factor.

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

19. The Tribunal heard that there are no persons whose visa would be cancelled under s.140 in this case.

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

20. 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

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

22. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

23. The Tribunal affirms the decision to cancel the applicant’s Class TU 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.