Karagoda Pathiranage (Migration)

[2018] AATA 64

Karagoda Pathiranage (Migration) [2018] AATA 64 (8 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tharidu Kanishka Karagoda Pathiranage

CASE NUMBER:  1618962

DIBP REFERENCE(S):  BCC2016/2956380

MEMBER:Nicola Findson

DATE:8 January 2018

PLACE OF DECISION:  Perth

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

Statement made on 08 January 2018 at 2:48pm

CATCHWORDS

Migration – Cancellation – TU - Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Not enrolled in a registered course – Unexplained period of non-enrolment –  Poor academic results – Degree of hardship – Parents’ relationship difficulties – Australian wife is pregnant

LEGISLATION

Migration Act 1958, ss 48, 116(1), 116(1)(b), 140,189, 198
Migration Regulations 1994, r 2.43(1)(1a) Schedule 2 Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 November 2016 made by a delegate of the Minister for Immigration 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 it appeared that the applicant had not been enrolled in a registered course of study since 27 August 2015 and was therefore in breach of a condition of his student visa.  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 22 November 2017 to give evidence and present arguments.  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

4. 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?

5. 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).

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

7. The Departmental file indicates that on 6 October 2016, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa.  In summary, that NOICC set out the statutory basis for the consideration of the cancellation of the applicant’s student visa and also indicated that it appeared that the applicant had not been enrolled in a registered course of study since 27 August 2015.  The applicant was invited to provide a written response to the NOICC and provide any comments as to why his visa should not be cancelled.  The applicant was informed that he had to provide his written response within five working days after he was taken to have received the notice.  The notice in summary also outlined the consequences if the applicant’s student visa was cancelled.  No response was received from the applicant in relation to the notice of intention to consider the cancellation of his student visa.  A department delegate considered the issues associated with the cancellation of the applicant’s student visa and decided to cancel the visa on 2 November 2016.  The applicant was informed by both registered post as well as email of the cancellation of his student visa.

   Tribunal hearing

8. During his hearing before the Tribunal, the applicant confirmed his name and personal particulars.  He confirmed he had received the NOICC.  He was asked by the Tribunal why he had not responded to the NOICC.  He said that when he got the NOICC, he did not think he had enough time to respond. He agreed he had not responded to the NOICC at any stage.

9. The applicant told the Tribunal that he came to Australia, after he had completed his secondary education in Sri Lanka, to study Civil and Construction Engineering.  He said he wanted to travel the world working in this field. The applicant said that he had arrived in Australia on 7 June 2012 and studied a Certificate 4 in Engineering at Curtin College for six months before commencing a Diploma of Engineering at the same institution.  He said he started the Diploma in 2013 and finished it at the end of July 2015.  He said it should have been a one year course, but he took longer because he failed four or five of the twelve units – two in the first year - and had to repeat them.  He said he tried to commence his Advanced Diploma about three months after he ceased studying his Diploma course, but was unable to because he could not obtain a letter of release to do so. 

10. The applicant confirmed the information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal, that he had not been enrolled in a registered course of study since 27 August 2015.

11. The applicant was asked why he had not been enrolled in a registered course of study since 27 August 2015.  He said that his problems started with his family.  He explained that in about mid-2014, after he had completed three semesters of study, he became aware that his parents were having difficulties in their relationship and had begun living apart.  He said the core of his family was about to collapse.  He said he was exposed to a situation that he did not know how to deal with and did not have anyone to talk to about it.  He said that his parents’ situation caused him to go through a “depression period” and his course results started to go downhill. 

12. The applicant was very vague in providing the Tribunal with details about his parents’ problems and how they explained or excused the long period in which he was not enrolled in any registered course.  The Tribunal asked the applicant if he could provide more detail about his parents’ problems.  He indicated that they had had some sort of fight after he had left Sri Lanka.  He told the Tribunal one of his two sisters’ had first informed him that their parents were fighting.  He said he had spoken with his mother as soon as he learned she was having problems with his father, during which conversation she told him “it is what it is”.  He said his mother told him at the end of 2014 that she wanted to divorce his father.  He said his mother and two sisters stayed at the family home, while his father went to live with his parents. 

13. The applicant told the Tribunal that is parents had recently resolved their issues and had reunited in early 2017. 

14. When the Tribunal noted to the applicant that he had earlier indicated he had had failed units in his first year of study - before he discovered his parents were having problems - he replied that he was just not very good at those subjects, which were heavily based on computer skills (Auto CAD and surveying).  

15. The Tribunal asked the applicant if he had sought any assistance in relation to the way he was feeling.  He said that he had spoken to a counsellor at his education provider as soon as he started failing units for the second time.  He said he was unable to recall the name of the counsellor.  He said he had spoken to her on two occasions.  He said that he did not have any money to consult a medical practitioner about his problems.

16. He said he did not think it would be a problem to take two or three months off his studies at the end of semester one 2015.  He reiterated that after about three months he tried to re-enrol at another education provider, but was unable to because Curtin College would not provide him with a letter of release, because he had not passed all of the units.  There is no evidence before the Tribunal of the applicant’s attempt to re-enrol in any further study towards the end of 2015.

17. The applicant told the Tribunal that his parents had provided him with financial assistance to undertake his studies, in particular by paying his course fees, and the applicant had a part time job to cover his rent and food expenses.  However, he went on to say that when the problems between his parents started, he stopped getting financial support from them.    He said that because they were so concerned about their own problems, they forgot him.  He then told the Tribunal that the main reason he could not enrol in his advanced Diploma course was because of his dire financial situation.

18. The Tribunal indicated to the applicant that it did not make sense that his parents would cease their financial support, given that they had already invested a significant amount of money to enable him to study previously.  The applicant said that his parents were absorbed in their own problems and their focus was not on their children.  The applicant said he went from speaking to his parents every day to “once in a blue moon”, that is, about once per month.  The Tribunal asked the applicant why he was not speaking more often during this time if he was concerned about their situation.  The applicant responded that he did try, but could often not get in contact with them.  The Tribunal asked the applicant if he had had any conversations with either of his parents about paying his course fees.  He said that he had, but his relationship with his father deteriorated during his parents’ separation because he was perceived as taking his mother’s side, and this also led to his financial support being cut off.

19. The Tribunal indicated to the applicant that it was concerned that despite being afforded the opportunity by the Department to respond to the NOICC, there had been no attempt whatsoever by him to contact the Department to explain his situation or seek more time to respond.  The applicant told the Tribunal that he did not know he had those options.  He said he approached a lawyer for advice after he had received the decision to cancel his visa.  The Tribunal indicated it also had concerns that the applicant had not raised his claimed problems until the hearing.  The applicant said he did not know what to do.  He said that he did not say anything because he did not have any evidence to support his story.

20. At the hearing, the applicant produced a copy of a marriage certificate which indicated that he married an Australian woman on 11 September 2017.  When the Tribunal explored with the applicant the timing of his marriage, the applicant responded that his marriage had nothing to do with having his student visa cancelled.  He said he had been in a relationship with his wife for about a year and a half and they were keen to marry before having children.  He told the Tribunal his wife was currently about four weeks pregnant.  He said that he had not applied for a partner visa on the basis of his relationship with his wife because he had hoped to have his student visa reinstated. 

21. The applicant told the Tribunal that he had worked for a Sri Lankan man doing cleaning work since September 2012, but had ceased this work as soon as he had his visa cancelled.  He said was unable to recall his employer’s name.    He said although his wife is unemployed and receiving Centrelink benefits, she had supported him since his visa cancellation. 

22. The Tribunal asked the applicant if he or others would suffer hardship if the visa were cancelled.  The applicant said that he did not want the visa cancelled as he wanted to finish his study to enable him to pursue his dream of working around the world.  He said that it would be difficult for him to return to his home country, Sri Lanka, given his ordinary level of education and the now strained relationship he has with his father.  He said that he would not have the support from his family and would not know where to live or how to find a job.  The Tribunal asked the applicant why his relationship with his father would still be strained given that his parents had resolved their differences and reconciled.  He said he no longer has a good connection with his father.  He said he spoke with his father in 2016, on his birthday, and the conversation ended after his father swore and hung up the phone.  He said he has not spoken with his father since then.

23. When asked what impact any visa cancellation would have on his wife, the applicant  told the Tribunal that she would be devastated if his student visa was cancelled and he had to leave Australia.  He said his wife is currently being treated for depression. The Tribunal asked the applicant how his wife factored in to his plans to travel and work around the world.  The applicant responded that his wife was supportive of his plans and indicated that she would accompany him wherever he went.

24. The Tribunal asked the applicant why his wife had not attended the hearing to, at the very least, support him.  By way of response the applicant said that he had come alone as he was not aware his wife needed to be at the hearing.

25. The applicant told the Tribunal that if his visa was reinstated he would like to continue his studies, and get a degree, because it is still his plan to work in different countries in the Civil and Construction Engineering field.  He said he had done some research after his visa was cancelled and the course he wanted to do is at Edith Cowan University and costs $11,500 per semester. The Tribunal queried how he would pay for his further studies given his evidence that his family was no longer supporting him, and he and his wife were currently surviving on Centrelink benefits and so appeared to be in a position where he would not be able to afford his fees.  He said that if his visa was reinstated he could work and his wife could apply for a loan to enable him to study.

26. When asked if he had anything further to raise with the Tribunal, he said that he had made a few mistakes assuming things and a big mistake in leaving his studies.  He said he made these mistakes because he was not experienced and he had no support.  He said he does not want to have a big, black mark on himself.  He said he wants to have a second chance at education.

27. The applicant sought, and was granted, additional time from the Tribunal to provide documents in support of his review application.  Following his hearing, the Tribunal received the following documents:

    a.email correspondence dated 11 November 2016 between the applicant and his education provider, Curtin College,  concerning a request for academic documents;

    b.an online application to Edith Cowan College dated 10 November 2016, to enrol in a package of courses, including a Certificate IV and Diploma in the Engineering Studies stream and a Bachelor of Technology (Engineering) Electronics and Communications;

    c.a medical certificate dated 3 November 2017 provided to Centrelink and indicating that the applicant’s wife is temporarily (for a period of 3 months) unfit for work or study because of depression and anxiety.

28. 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

29. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

30. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). 

    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   

31. It was the evidence of the applicant that his purpose in coming to and staying in Australia was to study Civil and Construction Engineering, which would ultimately enable him to realise his dream of working in a job that was in demand around the world. 

32. The Tribunal accepts that the applicant arrived in Australia on 7 June 2012 and completed a Certificate IV in Engineering at Curtin College for six months before commencing a Diploma of Engineering at the same institution. 

33. Having regard to the applicant’s evidence, the Tribunal accepts that he may have travelled to Australia intending to study, however there is no evidence of any compelling need for the applicant to remain in Australia, and given his conduct in Australia, as set out below, the Tribunal gives this only little weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

34. The applicant admitted that he had not been enrolled in a registered course after 27 August 2015 up until his visa was cancelled on 2 November 2016, a period of some 14 months. 

35. The applicant claimed that his parents had relationship difficulties, and this impacted on his studies.  He also indicated that his parents’ lack of financial support while they were dealing with their issues led to him not being able to enrol in further studies. 

36. The applicant stated, and the Tribunal accepts, that he did not breach any other conditions on his student visa.

37. As noted below, the Tribunal does not find any of the reasons for his breach of the enrolment condition convincing.  The Tribunal considers this condition to be important, because one of the primary reasons for holding a student visa is to be enrolled and to study, and he had admitted to doing neither for a considerable period of time.  When the Tribunal weighs his reasons, and its views on those reasons as set out below, against the long and largely unexplained period of non-enrolment, the Tribunal has significant concerns about the period of breach which leads it to give this factor some weight towards the visa being cancelled.

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

38. The Tribunal has had regard to the applicant’s claims that it will be difficult for him to return to Sri Lanka given his ordinary level of education; he would not have the support of his family there; and he would not know where to live or find work.  The Tribunal has also considered the applicant’s claim that his wife, who has just learned she is pregnant and who also is suffering depression, would suffer if the visa remains cancelled.  The Tribunal accepts that there may be some hardships to the applicant and his new wife if the visa remains cancelled and gives this some weight in favour of the visa not being cancelled.

    Circumstances in which the ground of cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.  The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

39. The Tribunal has had regard to the applicant’s explanations and responses at hearing and the evidence provided. The Tribunal has found above that the applicant was not enrolled in a registered course for a period of 14 months from August 2015 until his visa was cancelled on 2 November 2016.  The Tribunal has considered the applicant’s claims in relation to the circumstances surrounding the breach being the psychological as well as financial impact on him of his parents’ relationship difficulties.  On considering his claims, the Tribunal does not accept that his reasons and the evidence before it explain the breach.  The Tribunal has real doubts about his claims that his parents had relationship difficulties – his evidence about his parents claimed separation and the impact of that separation on him, which was raised for the first time at his hearing before the Tribunal, was vague and undetailed. He has not provided any credible evidence, including medical evidence, that his parents did have relationship problems which impacted upon his mental health and studies and led to him not being financially supported to continue his studies, and the Tribunal does not accept these claims.  Further, the Tribunal does not accept the applicant’s claim that his education provider was partly to blame for his lack of enrolment – it is ultimately his obligation to comply with conditions, and he has not provided any plausible evidence that he had requested or been denied a letter of release by Curtin College or attempted to enrol at a different institution towards the end of 2015.  The Tribunal has considered his explanations for why he was not enrolled for this significant period and therefore in breach, and it does not accept the circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time.  The Tribunal gives this factor very significant weight towards the visa being cancelled.

    Past and present conduct of the visa holder towards the Department

1. According to the delegate’s decision record, there is no evidence that the applicant has been uncooperative towards the Department.  The Tribunal gives this some weight towards the visa not being cancelled.

   If breach relates to a breach of r.2.43(1)(1a) by a Subclass 457 visa holder – mitigating, compassionate and compelling factors

2. Not relevant.

   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

3. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.

4. The applicant indicated that that if the visa remained cancelled he would return to Sri Lanka. Therefore, the Tribunal attributes little weight to this consideration in determining whether to cancel the visa.

   Whether there would be consequential cancellations under s.140

5. Not relevant.

   Whether any international obligations would be breached as a result of the cancellation

6. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations in this case. The applicant indicated that his wife would accompany him if he had to leave Australia.  The applicant also indicated to the Tribunal that there was no reason he cannot return to Sri Lanka and has not made any claims which would relate to this consideration.

   Any other relevant matters

7. The applicant told the Tribunal that he had come to Australia to study and that if his visa was reinstated he would like to continue his studies and attain a degree in his chosen field. The Tribunal did not find his evidence in this respect convincing, especially given his past behaviour and his current claimed financial situation.  The Tribunal notes that the applicant provided evidence that he made inquiries to re-enrol in a registered course, but this was only after his visa was cancelled by the Department.  The Tribunal has had regard to his responses but finds, in light of its findings above, that this adds very little to his case and gives it only very little weight towards the visa not being cancelled.

8. The Tribunal has considered the applicant’s evidence at hearing, and the limited documents he has provided, and finds that, considering the circumstances as a whole, the visa should be cancelled.

   DECISION

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

   Nicola Findson
   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.