Karadana Ralalage (Migration)

[2020] AATA 4808

Karadana Ralalage (Migration) [2020] AATA 4808 (19 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nuwan Vinodya Karadana Karadana Ralalage

CASE NUMBER:  1800907

HOME AFFAIRS REFERENCE(S):          BCC2017/3684923

MEMBERS:Rachel Westaway (Presiding)

David Thompson

DATE:19 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 19 November 2020 at 1:31pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – unable to pay course fee after father’s illness – application for scholarship and attempt to change to lower-level course – victim of assault – possibility of returning to home country in any case – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 January 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with condition 8202(2)(a) on the visa which states that the applicant must be enrolled in a full time registered course. 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 20 March 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.    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

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

6.    On 18 December 2017 the applicant was sent a Notice of Intention to Consider Cancellation (NOIC) by the Department of Home Affairs (the department). He responded in writing on 22 December 2017, and provided a copy of his response to the Tribunal with his review application.  His response may be summarised as follows:

a.    Past behaviour towards the department

The applicant included a list of his educational qualifications and experience including employment experience and various Diploma courses that he undertook in Australia.

b.    The extent of compliance with any conditions subject to which the visa was granted

The applicant claims that he completed his English Language Bridging course with an overall attendance of 88%. He stated that his progression was unconditional and he was granted 200 credit points for previous studies. He stated that it was a great privilege for him to undertake the Bachelor of Engineering and this will give him the best job opportunities in Civil Engineering Construction and provided an overview of what skills he will develop at every stage of undertaking the Bachelor of Engineering.  

c.     The circumstances in which the ground for cancellation arose

The applicant stated that he paid the full course fee for the English Languages Barrier course, which he completed. He also claims to have paid full course fees and complied with all conditions since arriving in 2011. He states that he was unable to make payment of full course fees for the first semester of 2017 because his father became ill and the money was put towards his medical treatment. He explains that he applied for a scholarship and attempted to change courses. He stated that he was not able to get a release letter from Curtin University so he could not apply for a new visa with a new COE following a letter of offer from New England College to undertake the Project Management – Civil and Construction Design course.

d.    The degree of hardship that may be cause to you and family members if the visa was cancelled

The applicant stated that ‘I’m living in Australia as solution for current situations of my father’s life. I have the responsibility to keep him with pleasure at all the time. Because my parents expect best life for me with these studies in Australia. Doctors have advised my mother and my brother, the pleasure is needed for father to get best results and save his life with medical treatment. Therefore, I was not going to tell them about current situation of visa and studies in Australia. So, I try to manage the living cost and get the scholarship to follow Bachelor course soon’ (sic).

e.    The purpose of your travel and stay in Australia

The applicant explained that he travelled to Sri Lanka in October 2017 when his father was admitted to ICU. The applicant stated that he does not travel to Sri Lanka as he does not want to inform his father about his current study situation given his poor health. His father is on medication for his heart and kidneys and has regular specialist appointments.  

f.    Present behaviour towards the department

‘The granted visa helps me to save my father’s life, I’m living in Australia in the present. However, I tried to improve my knowledge with resources and materials at libraries in the city of Perth, City of Gosnells and City of Canning. Also, I am member of Engineers Australia from 2 May 2016. I try to improve knowledge with their materials’ (sic). The applicant also stated that he donates blood and participates in Buddhist activities.

g.    The legal consequences of a decision to cancel the visa

‘I don’t have legal consequences of a decision to cancel the visa. I can prove you with the evidences as I have applied police clearance of Australia and Sri Lanka for my past needs.’

h.    Any other matters

‘In the past there was a matter, a group of young Aboriginal people attacked me in December 2012 at Armadale city. Therefore, I had to visit Armadale Detective office and Perth Children Court time to time as witness … Also, I got medical treatment from Armadale and Fremantle hospitals as they have attacked my head. After the attack I was admitted Armadale hospital as I was unconscious few hours. Therefore I was unable to spend few weeks with studies, however staff of Challenger Institute helped me to follow the course and complete it successfully. Few years ago, immigration department called me and asked my health condition regarding this matter. However, I was received “criminal injuries compensation application form” few months ago as it had been sent to my previous postal address. It has been noticed as the application is being more than 3 years after the date. So, if I have chance to apply this now. I can support it for my studies as solution for current situation in Australia.’    

7.    The Tribunal received the following material from the applicant in support of his application for review:

a.     Copies of library cards issued in the name of the applicant;

b.    List of medications and dosage amounts;

c.     Confirmation of Enrolment (CoE) issued to the applicant by Curtin University for a Bachelor of Engineering for the period commencing 20 February 2017 until 15 December 2019;

d.    Receipt for payment of rent issued to the applicant on 10 March 2016;

e.    Email from AMSA relating to a request by the applicant to have his Sri Lankan qualifications recognised in Australia dated 6 January 2011;

f.   Police Certificate issued to the applicant by WA Police on 8 December 2016;

g.    Copies of Australian Red Cross cards;

h.    CoE issued to the applicant by Curtin University for English Language Bridging Course for the period commencing 12 September 2016 until 18 November 2016;

1. Statement of Academic Record issued to the applicant by Education and Training International and Challenger Institute for a Diploma of Transport and Distribution (Marine Engineering – Engineer Watchkeeper) dated 12 December 2011;

j.   Certificate of participation in Clean up Australia 2017 presented to the applicant;

k.     Letter from Challenger Institute of Technology to confirm that the applicant was enrolled in a Diploma of Transport and Distribution (Marine Engineering – Engineer Watchkeeper) dated 17 May 2011;

l.   Police Clearance Certificate issued by Sri Lanka Police on 20 May 2016;

m.   Diploma of Transport and Distribution (Marine Engineering – Engineer Watchkeeper);

n.    Business card of WA Police detective;

o.    Advanced Diploma of Engineering (Mechanical) issued by Challenger Institute on 20 December 2013;

p.    General information and application relating to making an application for Criminal Injuries Compensation;

q.    Certificate of Completion issued to the applicant by Curtin University for English Language Bridging Course issued on 18 November 2016;

r.     Mobile phone plan details;

s.     Diagnosis Ticket from overseas medical institute;

t.   Diploma of Civil Construction Design issued to the applicant by Challenger Institute on 23 September 2015;

u.    Advanced Diploma of Civil Construction Design issued to the applicant by Challenger Institute on 14 December 2015;

1. Certificate issued to the applicant by Engineers Australia dated 2 May 2016;

w.   Student Progress Report for English Language Barrier Course dated 18 November 2016;

1. Email confirmation of submission of application for DFAT scholarship dated 24 February 2017;

y.     Email from Curtin university to the applicant relating to his request for release dated 17 March 2017;

z.     Diploma of Management issued to the applicant by Cambridge International College on 31 July 2016;

aa.  Commonwealth Bank credit card statement in the applicant’s name for the period 15 November 2017 until 14 December 2017;

bb.  Letter of Offer issued to the applicant by New England College Perth for an Advanced Diploma of Leadership and Management dated 7 March 2017;

cc.  Email trail between the applicant and Northside Rentals relating to rental car damage;and

dd.  Flight itinerary in the applicant’s name for a one way flight from Perth to Colombo on 24 October 2019.

Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202(2)(a) was attached to the applicant’s visa. This condition requires that the visa holder is enrolled in a full-time registered course.

9.    The applicant provided the Tribunal with a copy of the delegate’s decision. Contained within this was reference to the Provider Registration and International Student Management System (PRISMS), which indicated that the applicant was not enrolled in a full-time registered course of study since 21 March 2017. Therefore, it appears the visa holder does not meet the requirements of condition 8202(2)(a). The delegate’s decision was made on 4 January 2018. Therefore, it appears that the breach lasted for approximately nine months.

1. In his response to the NOICC, the visa holder claims that he unintentionally did not comply with condition 8202 of his student visa; however he now understands the visa conditions.

2. The applicant confirmed he was not in a registered course of study from 21 March 2017.

3. He confirmed this was for a period of 9 months.

4. Given the applicant has confirmed the breach and acknowledged he was not enrolled in a registered course of study for nine months, the Tribunal finds that the ground for cancellation exists

5. Consideration of discretion / conclusions

6. For the reasons given above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

Consideration of discretion

1. 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’.

Circumstances in which ground of cancellation arose

1. In response to the NOICC the visa holder claims that the circumstances that led to him not being enrolled in a registered course was due to financial hardship as a result of his parents not being able to cover his study costs and difficulty in obtaining a new enrolment, therefore leaving him unable to concentrate on his studies. The visa holder states he intends to continue with his studies.

2. In response to the NOICC the visa holder claims that he was unable to obtain a release letter from his education provider. In addition to visa holders ensuring that they comply with their visa conditions; there is also a requirement under the Education Services for Overseas Students (ESOS) National Code for visa holders who do not complete six months of their principal course, to obtain permission from their education provider in order to transfer to another education provider.

3. The applicant explained that the reason why he was not enrolled in a registered course of study was because of financial difficulties. He explained that he requested a release letter from Curtin University but they did not agree.

4. He found a course in the same field but it was a TAFE qualification and because it was a lower qualification they asked for a release letter from Curtin.

5. The TAFE provided an offer letter to provide to Curtin for the purpose of obtaining his release letter and then Curtin offered him a scholarship but then he never heard from them after this.

6. The applicant stated that he submitted a scholarship application to Curtin but they have not responded so far. They have not informed him that he has been granted the scholarship.

7. The cause of the financial difficulties was his father suddenly falling ill because of a germ which entered his body.

8. The applicant’s father could not provide him with financial help because the money was spent on his illness and recovery.

9. The applicant explained he did not ask his brother for financial assistance because he is aware of his brother’s own financial difficulties.

10. The Tribunal asked the applicant why he did not return home when he realised that the fees could not be paid.

11. The applicant stated that because of the situation back home and because if he left and went back to Sri Lanka they would be worried about why he returned and he didn’t want to burden his father.

12. The applicant also stated that he was targeted in January 2012 in an attack by people he claimed were indigenous. He stated he was unconscious for some time and not allowed to work because of his condition so he had no income and this contributed to his financial situation and inability to pay fees.

13. The Tribunal has considered the explanations provided by the applicant but does not accept that these reasons are sufficient to outweigh the reasons for not cancelling the visa.  The Tribunal accepts that the applicant faced financial difficulties brought about by family illness and his own health issues relating to an attack but does not accept that these issues alone are sufficient to justify the significance of the breach and the applicant could have returned home until which time he could afford to pay for his education. The Tribunal acknowledges this may be disappointing to the applicant and his family however the student visa was issued to the applicant for the sole purpose of study.

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 applicant explained that during the period of time where he was not enrolled, he studied in the library and worked as a cleaner for 4 hours a day.

2. The applicant explained that he managed to get his accommodation and living expenses covered with the money he earned as a cleaner.

3. He confirmed his father remained so unwell he was not in a state to speak to him. He said that his condition is much worse now and it has affected his brain. His situation has turned from bad to worse. He was asked how he could afford to pay the fees if his visa is reinstated and not cancelled. He explained that he is thinking to return to Sri Lanka in the near future given his father’s poor health and he needs to leave to look after his mother. He said that the impact on him and his family is that previously he could not tell them but they expect him to provide support and look after them.

4. He confirmed he is the primary visa holder and that there is no reason why he could not return home to Sri Lanka.

5. The Tribunal accepts that the applicant came to Australia with the intention of studying and that he may well have continued to study even after he was not officially enrolled. The Tribunal notes that he stated he does not have a compelling need to remain in Australia other than to compete his proposed course. The Tribunal has also considered the applicant’s family situation. The Tribunal gives some weight to the applicant’s reasons for being in Australia however these are not sufficient in the Tribunal’s mind to outweigh the significance of the breach and not cancelling the visa.

The extent of compliance with visa conditions

1. There is nothing before the Tribunal to suggest that the applicant has breached any other conditions on his visa and the Tribunal gives this factor some weight in favour of the applicant and not cancelling the visa.

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

1. The Tribunal asked what the consequences of a bar on applying for another visa would be on the applicant; whether this has any relevance to him at all given he intends to return back to Sri Lanka to look after his father and mother. 

2. The applicant explained that the three year bar on applying for another visa would affect his obligations pertaining to a loan he has with the Commonwealth Bank.  The loan against his credit card was to pay $1,000 to his insurance company when his car was recently broken into. He claims that he was also targeted by a group of Indigenous people. 

3. The applicant owes approximately $4,500 to the bank and pays $200 a week off the loan.  The expenses were for a car loan so he could drive for Uber.Whilst waiting for his review he is continuing with his cleaning job and he works as an Uber driver and he intends to pay back the loan with these earnings.

4. The Tribunal asked why he didn’t take out a loan to pay for his school fees. He said his father originally gave him some money however it ran out.

5. The first time he borrowed from the bank was 2012 due to his condition and he could not afford to pay it back with what his father sent to him and he incurred $50 per month in interest. The applicant stated that he applied for a loan but it was not approved. He is not a permanent resident and he is not eligible to apply for a loan.

6. The Tribunal asked if the applicant applied for a limit increase for the amount for money he could use on the card. The applicant explained that the bank gave him a limit of $4,500 but it did not cover the course fees.

7. The Tribunal asked the applicant if there was any reason he could not return home and study his course there. He stated that in 2005 he came to Australia to continue his studies in for a maritime qualification but wasn’t given permission to continue maritime studies.

8. The Sri Lankan qualification in maritime studies is not internationally recognised however the Australian qualification are and he would therefore like to complete these..

9. The applicant said that it was not possible to do the Australian qualification online because there are practical lessons involved.

1. The Tribunal accepts that the applicant and his family have invested financially in his education and a visa cancellation would prevent him from obtaining his qualifications in the shorter term. The Tribunal accepts that this is disappointing and a financial burden. Further, the Tribunal notes that emotionally it is disappointing for the applicant and his family if his visa is cancelled. The Tribunal gives these factors some weight in favour of the applicant and not cancelling the visa. The Tribunal has considered the issue regarding repayment of the credit card, however sees this as an irrelevant issue as the applicant can still repay the bank through online payments and as such gives this factor no weight in favour of the applicant and not cancelling the visa.

Past and present behaviour of the visa holder towards the department

1. There is nothing before the Tribunal to indicate that the applicant has not complied with requests from the Department or the Tribunal and his general approach has been courteous and responsive. The Tribunal notes that the applicant has outlined his adherence to Buddhism and his membership of Engineers Australia. The Tribunal acknowledges that the applicant’s behaviour in Australia outside of his breach of his visa condition has been positive and gives this factor some weight in favour of the applicant and not cancelling the visa.

Whether there would be consequential cancellations under s.140

1. The applicant has no dependents. The Tribunal gives this consideration no weight.

Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

1. The applicant confirmed that he does not have any children in Australia whose interests could be affected if the visa was cancelled, either because their visas would be consequentially cancelled as a result of cancelling the visa or otherwise affected. Furthermore the applicant has stated there is no reason he would not be able to return to Sri Lanka. As such, this consideration does not apply to the visa holder and the Tribunal gives this no weight in its consideration.

Whether there are mandatory legal consequences

1. If the Student visa is cancelled, the applicant will become an unlawful noncitizen and will need to apply for a Bridging visa E to regularise his visa status. He may have limited options to apply for further visas in Australia and may be required to return to Sri Lanka. He may also be liable for detention under Section 189 and removal under Section 198 of the Act if he does not voluntarily depart Australia. He will be subject to Section 48 of the Act which means that he will have limited options to apply for further visas in Australia and may be required to return to his country of origin. If the visa is cancelled then he may not meet Public Interest Criterion 4013, and it may not be approved within the next three years.

2. I give this consideration minimal weight in the visa holder’s favour because these are the intended consequences of the legislation.

Any other relevant matters

1. The applicant stated that he would like to remain in Australia and not have his visa cancelled as he would like to complete his studies. However, he stated that his priority is to his parents. He said that the situation occurred because in the past he had some issues that he could not tell his family about but now his priority is to return home to Sri Lanka to look after his parents. He said that he cannot estimate how long this would be for, and that it could be a life-time commitment. He said that they brought him up so he will give his priority to them. He confirmed that his parents do not know that his visa was cancelled. He did not tell them as he feels it may make things worse for them.

2. He has a mobile phone plan which was for two years and he has approximately 2 more months to go. He asked for this to be considered.

3. The applicant stated that he has a lease, and that if his visa is cancelled he will need to find a tenant for the remaining 6 months, or will be liable to pay out the lease.

4. The Tribunal has considered these additional factors put forward by the applicant. The Tribunal notes the relationship the applicant has with his family. However it does not see the relevance of this to the issues at hand. The Tribunal has considered the outstanding issues such as tenants and repayments which the applicant states would need to be considered if he was to leave the country quickly due to his visa being cancelled. The applicant could request additional time on his visa to enable him to finalise these before he departs. As such, the Tribunal gives this minimal weight in favour of the applicant and not cancelling the visa.

5. The Tribunal has considered the issues raised by the applicant for not cancelling the visa. Considering the circumstances as a whole and also individually, the Tribunal concludes that the visa should be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Rachel Westaway
Senior Member

David Thompson
Member