KUMARAPERU ARACHCHIGE DON (Migration)

[2017] AATA 763

KUMARAPERU ARACHCHIGE DON (Migration) [2017] AATA 763 (17 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SANDUN JALIYA KUMARAPERU ARACHCHIGE DON

CASE NUMBER:  1616604

DIBP REFERENCE(S):  BCC2016/21877 BCC2016/2187773

MEMBER:Magda Wysocka

DATE:17 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 17 May 2017 at 11:11am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – Enrolment – Long period of non-enrolment in a registered course – Change to Vocational courses – Family’s financial problems – Drought conditions on family farm

LEGISLATION

Migration Act 1958, s 116(1)(b)

Migration Regulation 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 September 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 a ground for cancellation under s116(1)(b) of the Act existed because the applicant breached condition 8202 of his subclass 573 visa as he was not enrolled in a registered course. The applicant provided a copy of his departmental decision record to the tribunal. 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. On 3 April 2017 the applicant was invited to appear before the tribunal at a hearing scheduled for 2 May 2017. The applicant did not attend the tribunal at the time and place of his scheduled hearing. A few minutes prior to the scheduled hearing he had sent an email to the tribunal advising that he was not able to attend because he has been very sick with cold and flu since the previous day and requested another hearing date. A medical certificate completed on 1 May 2017 was attached. This medical certificate does not specify that the applicant was suffering from any medical condition or identify what that condition was, and only stated the writer’s opinion that the applicant would be unable to attend his ‘usual duties’ from 1-4 May 2017. Despite concerns about the very limited information in the medical certificate, the tribunal agreed to reschedule the hearing.

4. The applicant appeared before the Tribunal on 5 May 2017 to give evidence and present arguments. The applicant confirmed that he was in a position to proceed with the hearing despite having been ill. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The applicant was represented in relation to the review but his registered migration agent did not attend the hearing.  

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. The delegate’s decision record provided by the applicant to the tribunal states that he was granted a subclass 573 visa on 11 April 2014. The decision record also states that the applicant was not enrolled in a registered course of study since 28 May 2015. In response to the department’s notice of intention to consider cancellation (NOICC), the applicant provided a new confirmation of enrolment for a bachelor of business course at Stott’s College, created on 13 September 2016.

10. The applicant conceded that he stopped studying in 2015 and did not dispute that his enrolment had been cancelled.

11. 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

12. 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.

13. 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).

14. The applicant provided a response to the NOICC in the form of a new CoE for a bachelor of business course, letters of offer from Stott’s College for the same course and a confirmation of health cover. In a covering email, he submitted that he had a three months gap between enrolments. The tribunal has considered these documents as well as the applicant’s oral evidence at hearing, as detailed below.

    The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.

15. The applicant advised the tribunal that he first arrived in Australia on 8 December 2008 (on a subclass 572 visa) to study a diploma of community welfare because he was interested in the subject and had heard there were good colleges in Australia. Prior to arriving in Australia, he had completed a diploma in IT studies in 2006 in Sri Lanka and spent a year working at a factory in Sri Lanka in an IT-related role.

16. The applicant completed a six month ELICOS course from January- March 2009 and provided evidence of this to the tribunal. However, despite having come to Australia for the purpose of completing a diploma of community welfare, the applicant advised the tribunal that he did not commence that course but instead enrolled in a certificate III in automotive mechanical engineering because his cousin worked as a motor mechanic in Australia and the applicant fixed a car at his workshop for a couple of days and liked it.

17. The applicant completed the certificate III course and embarked on a serious of certificates in automotive technology and diplomas of management. He stated that he chose these courses because he had an idea to return to Sri Lanka to start a mechanic workshop business.

18. The applicant provided the tribunal with evidence of completion of the following courses:

    a.English for Academic Purposes (5 January 2009-13 March 2009).

    b.Certificate III in Automotive (mechanical engineering) (10 March 2010-30 April 2011). (The applicant has also provided documents referring to a certificate III in Automotive- Mechanical Technology. These two certificates have the same course code – AUR30405- and appear to be the same course.

    c.Certificate III in Automotive (electrical technology) (1 August 2011- 20 December 2011).

    d.Certificate IV in business (1 March 2011- 30 November 2012)

    e.Diploma of management (2 May 2011- 30 June 2011).

    f.Diploma of business (2 May 2011- 30 June 2011).

    g.Certificate IV in Automotive Technology (18 January 2013- 21 February 2014)

    h.General purpose English (30 November 2013 to 2 February 2014).

19. The applicant stated that after having completed these courses he wanted to get a bachelor degree in case he did not want to open a motor mechanic business and enrolled in a diploma of marketing and a bachelor of business (marketing) in 2014. He advised the tribunal that he did not complete his diploma of marketing because he failed subjects in the first and second semester but that his course provider allowed him to start his bachelor studies regardless of this. He did not complete his bachelor studies (his enrolment in this course ceased on 28 May 2015).

20. The applicant has completed a number of vocational and educational training courses since arriving in Australia over eight years ago. While these courses are not related to his previous studies or work experience in Sri Lanka, or to his original intended studies in Australia, the tribunal accepts that the applicant came to Australia for the purpose of studies and gives this some weight in favour of not cancelling his student visa.

21. Having regard to the evidence before it, the tribunal does not consider that the applicant has a compelling reason to remain in Australia.

    The extent of compliance with visa conditions

22. The applicant was not enrolled in a registered course from 28 May 2015 until 13 September 2016, a period of over fifteen months. The tribunal considers this to be a significant period and gives it weight in favour of cancellation of the applicant’s visa.

23. The applicant has claimed in his NOICC response email of 14 September 2016 that he had a three months gap between enrolments. It is unclear which enrolment period he was referring to, as the gap between his enrolments from 28 May 2015 to 13 September 2016 is significantly longer than three months.

    The circumstances in which the ground for cancellation arose

24. The applicant advised that he commenced his bachelor of business studies in 2015, studied for approximately six months but did not complete that degree because he could not pay his course fees. He claimed that his father took out a bank loan to pay for the applicant’s student visa-related costs in 2014. However, his father later informed him that he needed the loan to use for his farm.

25. The applicant was questioned about what actions he took after his father informed him that he would not be sending money for the applicant’s studies. The applicant stated that he went to his course provider (Cambridge) but he already had a payment plan in place for his school fees and they told him that he had to pay his fees. He claims he then got a credit card to pay $8500 of his school fees. After that he could not afford to pay any more and stopped his studies. He stated that after this he worked 20 hours a week in a cleaning job to pay his bills and rent.  He was waiting for his father to tell him when he had money. He claimed that his father did tell him this but then the department sent a NOICC.

26. The tribunal has considered the applicant’s evidence but found it confusing and unclear. The applicant provided a confusing timeline about when his father became experiencing problems in his farming business and what those problems were.

27. The applicant initially stated that his father could not pay the applicant’s course fees because his business was going down in ‘maybe 2016’ however the delegate’s decision record provided by the applicant indicates that the applicant’s enrolment in a registered course ceased on 28 May 2015. In response to this, the applicant stated that his father stopped sending fees in 2015 because he had problems selling his harvest due to competitors. Later, however, the applicant stated that his father used the bank loan intended to pay for the applicant’s fees to build a pipeline to pump water uphill to his farmland and referred to drought and famine at the time. Country information indicates that there are not infrequent reports of drought in Sri Lanka, for example in 2014 and 2017.[1] However, the tribunal has concerns about the changing nature of the applicant’s evidence regarding what his father allegedly used the bank loan for. The applicant has provided no evidence to substantiate his claims regarding his inability to pay for the applicant’s course fees. The tribunal further found the applicant’s evidence that his father was later able to send money for his course fees vague. He claimed that in September 2016 his father told him that business was ‘growing’ but provided no further details or evidence on this. The timing of his father’s ability to pay for the applicant’s studies coincides with the department’s issuance of a NOICC on 22 August 2016, which the tribunal has concerns about. As such, the tribunal gives limited weight to his re-enrolment in a course of study on 13 September 2016, which was created after the NOICC was issued.

    [1] IRIN ‘Drought begins to bite in Sri Lanka’ (4 April 2014) Inter Press Service News Agency ‘El Nino Creates Topsy Turvy Weather in Sri Lanka (11 November 2015) Al Jazeera ‘Sri Lanka hit by worst drought in decades’ (22 January 2017) >

    On the vague evidence provided by the applicant, the tribunal is not satisfied that his account of why his enrolment was cancelled in May 2015 and why he remained unenrolled in a registered course up until 13 September 2016 is true. Even if the applicant’s father advised him that he was not going to send money for the applicant’s course fees because he needed them for his farm, the applicant could have taken steps to obtain money for his fees from other sources or could have chosen to return to Sri Lanka until he had the requisite funds to continue his chosen studies. The applicant did not take any such steps but chose to remain in Australia and work. The tribunal is not satisfied on the evidence before it that these circumstances were beyond the applicant’s control and gives them very limited weight.

    The degree of hardship that may be caused to the visa holder and any family members

28. The applicant advised the tribunal that he will be a ‘bit upset’ if his student visa were cancelled but provided no further details about the degree or type of hardship he or anyone else would suffer.

29. The applicant indicated that at one stage he wanted to open up a mechanics workshop in Sri Lanka. As discussed with the applicant at hearing, the qualifications that the applicant has received to Australia to date would appear to qualify him to embark on this plan. The tribunal further notes that the applicant also has qualifications from Sri Lanka.

30. The tribunal accepts that the applicant would be upset if his student visa were cancelled but given his minimal evidence on this matter, gives this only limited weight.

    The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).

31. The applicant responded to the department’s NOICC. There is no evidence before the tribunal to indicate that the applicant has been untruthful or uncooperative in his dealings with the department. The tribunal gives this some limited weight.

    Whether there are mandatory legal consequences to a cancellation decision.

32. Cancellation of the applicant’s visa will result in him being unable to be granted some temporary visas, including visitor and student visas, for a three year period (by virtue of condition 4013). The applicant will also be prevented from applying from many permanent visas while he remains onshore.

33. The applicant currently holds a bridging visa which allows him to remain lawfully in Australia. Should he continue to remain in Australia unlawfully after that visa ceases and if no other visa is granted, he would become subject to detention. There is nothing to suggest that any detention in such a hypothetical situation would be indefinite.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; whether there are persons in Australia whose visas would, or may, be cancelled under s140.

34. These factors are not relevant.

    Any other relevant matters.

35. The applicant did not raise any other relevant factors.

36. Having regard to the matters set out above, while the tribunal accepts that the applicant came to Australia to study, the tribunal considers that this and any other factors weighing in favour of not cancelling the applicant’s visa are outweighed by the significant length of the visa breach.

37. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Magda Wysocka
    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.