Millawithanachchi (Migration)

[2020] AATA 3490

Millawithanachchi (Migration) [2020] AATA 3490 (12 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Banduja Maduranga Millawithanachchi

CASE NUMBER:  1922322

HOME AFFAIRS REFERENCE(S):          BCC2019/2544088

MEMBER:Stephen Conwell

DATE:12 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 12 May 2020 at 4:19pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolled in a registered course of study – withdrew from unsatisfactory course – claims that circumstances were beyond applicant’s control not supported by evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Visa Condition 8202

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 August 2019 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 that the applicant was not enrolled in a registered course and therefore had breached condition 8202 of his 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 Tribunal exercised its discretion to hold the hearing by telephone.

4. The hearing was held during the coronavirus (COVID-19) pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. It also considered the consequences of further delay if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting the review hearing by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant was represented in the review hearing by his registered migration agent (agent).

6. The applicant provided a copy of the decision record (dated 6 August 2019) to the Tribunal.

7. The applicant participated in the telephone hearing on 12 May 2020 to give evidence and present arguments.  The applicant’s agent did not attend the telephone hearing.

8. 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

9. 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?

10. 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).

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

12. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 16 June 2015. By Notice of Intention to Consider Cancellation (NOICC) dated 4 July 2019, the applicant was advised by the Department of Home Affairs (Department) that information on the Provider Registration and International Student Management System (PRISMS) indicated that he had not been enrolled in a registered course of study between 6 August 2018 and 23 June 2019 and as a consequence it appeared he was in breach of condition 8202(2)(a) and that his visa may be cancelled under s.116(1)(b) of the Act.

13. The applicant’s authorised representative (migration agent) provided a written response to the NOICC, dated 11 July 2019, which is summarised below:

    ·      the applicant does not dispute that there are grounds for cancellation;

    ·      the applicant came to Australia study towards a Bachelor of Information Technology (IT), commencing via a series of ‘package courses’. He had completed the foundation course but did not achieve the required score to progress towards the diploma subject;

    ·      at or about the same time his father met with an accident and the applicant felt that he should return to his home country of Sri Lanka. This prevented him from enrolling for study in the next semester;

    ·      as a result of his personal circumstances the applicant “lost his track and interest in the Bachelor of IT. He was clueless at this time and got trapped with some education agent, who enrolled him in advanced diploma of business leading to Bachelor of Business with Stott’s college.”;

    ·      the applicant managed to pass a few units in his Advanced Diploma course before changing his study plan from Business to Automotive since his father had opened an automotive service centre back in Sri Lanka and wanted him to now automotive qualifications;

    ·      the applicant is currently enrolled in an Automotive study path and progressing well. He intends to complete his Automotive course and return to Sri Lanka to work in his family’s automotive business.

14. The submission on behalf of the applicant included evidence of his current enrolments:

    ·      COE AB2DA262 Certificate III in Light Vehicle Mechanical Technology - 22/07/2019 to 20/07/2020 - Created 24/06/2019;

    ·      COE AB2DE728 Certificate IV in Automotive Mechanical Diagnosis - 17/08/2020 to 01/03/2021 - created 24/06/2019; and

    ·      COE AB2DFB83  Diploma of Automotive Management - 19/04/2021 to 17/04/2022 - created 24/06/2019.

15. The applicant’s representative provided a further submission on 9 May 2020, attaching the following:

    ·       a deed of lease dated 15 March 2019 of premises in Sri Lanka for business purpose of operating a “vehicle service center”;

    ·      a copy of the applicant’s passport bio-page;

    ·      copies of the applicant’s current COEs (previously provided).

16. The decision record contained information from the government’s Provider Registration and International Student Management System (PRISMS) record indicating that the applicant had not been enrolled in a registered course of study between 6 August 2018 and 23 June 2019. This was not disputed by the applicant in his written submissions or in his oral evidence at hearing.  

17. Having regard to the information in the PRISMS as outlined in the decision record and the other evidence before it, the Tribunal finds that the applicant was not enrolled in a CRICOS registered course between 6 August 2018 and 23 June 2019. The Tribunal finds that he breached condition 8202(2)(a) of his visa.

18. 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). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA [2003] FCA 1170.

19. For these reasons, 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 to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

20. 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.

21. 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 the material evidence available to it, as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    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

22. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. The applicant has not been enrolled in a registered course of study for the period between 6 August 2018 and 23 June 2019.This is an indication the applicant was not pursuing the purpose for his travel to Australia as he was not actively engaged in studies for a lengthy period exceeding 10 months. At hearing the applicant confirmed that he remained onshore during the entire period of his non-enrolment bar some three weeks at the end of December 2018 – mid-January 2019 when he returned to Sri Lanka for holidays. 

    The extent of compliance with visa conditions

23. At time of visa grant, the Department made the applicant aware of the fact that he is required to be enrolled in a registered course of study for the duration of his Student visa. The Tribunal considers it was the applicant’s responsibility to be aware that any non-compliance with those conditions would adversely affect his eligibility to hold the Student visa.

24. The Tribunal finds that the applicant was not enrolled in a registered course of study for over 10 months in breach of visa condition 8202. The Tribunal considers the applicant’s period of non-enrolment in a registered course of study to be a serious breach of a visa condition.  The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted. The Tribunal gives this factor considerable weight in favour of the visa being cancelled.

25. Whilst the Tribunal acknowledges the visa holder is currently enrolled in a registered course of study, the Tribunal is satisfied the ground for cancellation under section 116(1)(b) still exists because:

    · s116(1)(b) states the Minister has the power to cancel a visa if satisfied that its holder has not complied with a condition of the visa. This means the visa holder is subject to a discretionary cancellation (not mandatory cancellation) in which their circumstances are taken into assessing non-compliance with a visa condition;

    ·      this refers to previous non-compliance on the current visa. If a Student visa holder was not enrolled in a registered course of study for any period of time while on their current Student visa, they have not complied with condition 8202(2)(a);

    ·      according to PRISMS, on 24 June 2019, the visa holder obtained enrolment in Vocational Education and Training level courses to study at Menzies Institute of Technology Pty Ltd during the period 22 July 2019 and 17 April 2022;

    ·      while the visa holder has held his Student visa, he was not enrolled in a registered course between 6 August 2018 and 23 June 2019. Therefore, between these dates the visa holder was not complying with condition 8202(2)(a) even though he remained onshore for substantially all of this period.

26. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. However on the basis of the foregoing evidence, the Tribunal is not satisfied the applicant achieved a reasonable degree of compliance with the study purpose and conditions of the Student visa. The foregoing considerations weigh in favour of cancellation of the visa.  

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

27. The applicant claims that he is keen to finish his automotive studies in Australia so that he may join his father’s automotive business. A copy of a business lease executed on 15 March 2019 was provided in support of this claim. The applicant explained that the lease is favour of his mother as lessee, for the purpose of operating a ‘vehicle service center’ on the premises.

28. The Tribunal asked the applicant what enquiries he had made to pursue his automotive studies back in his home country of Sri Lanka. The applicant claimed to have conducted some on-line searches of study options back in Sri Lanka but he had not made enquiries of any institutions there. The Tribunal noted that given he was now pursuing a vocational course of study, it would seem to make sense for him to be to complete these studies in Sri Lanka in his native language and at far less cost than to attempt to do so in Australia. The applicant responded that the quality of teaching in Australia is better and offers more practical training.  The Tribunal is not persuaded that the differences of teaching or course content between the two countries in the field of automotive training would be so disparate as to compel the applicant to remain onshore for a total of some seven years in order to complete a vocational diploma, which is what the applicant is essentially seeking.

29. The applicant’s agent mention in the written submission received on 9 May 2020 that vocational courses offered in Sri Lanka are not highly regarded and the educational institutes which offer them are not reputable. The submission also states that Bachelor and Masters qualifications are “more valued and regarded”.  The submission does not explain how such claims support the applicant’s change of study from a Bachelor degree to his current pursuit of vocational qualifications in automotive studies in Australia.  On balance the Tribunal finds the explanations regarding the applicant’s transition to his current automotive studies and his decision to pursue such studies in Australia at great inconvenience and financial cost, to lack credibility.

30. The Tribunal accepts the applicant and his family invested money and time in the applicant’s travel to and stay in Australia, including fees thrown away as a consequence of the cancellation of the applicant’s enrolment and his visa. These consequences are a foreseeable result of the cancellation of the visa.

31. The Tribunal accepts that the applicant’s family may have a lease for an automotive repair business in Sri Lanka. However the evidence before the Tribunal does not demonstrate that cancellation of the visa may have caused or may cause the applicant or members of his family a degree of hardship sufficient to persuade the Tribunal to give this consideration some weight in favour of exercising its discretion to set aside cancellation of the visa.

32. The Tribunal is not satisfied, on the evidence before it, that members of the applicant’s family, or the applicant himself, would suffer a degree of emotional, psychological or psychiatric hardship that would weigh in favour of not cancelling the visa.

    Circumstances in which ground of cancellation arose

33. The circumstances in which the ground for cancellation arose occurred when the applicant failed to maintain enrolment in a registered course of study between 6 August 2018 and 24 June 2019, which led to his non-compliance with visa condition 8202. 

34. At hearing the applicant mentioned that sometime in mid-2016 his father was involved in a motorcycle accident which required his admission to hospital. Following the accident the applicant returned to Sri Lanka where he stayed for a month before returning to Australia. The Tribunal notes that his father’s accident occurred two years before cancellation of the applicant’s visa. The Tribunal is not persuaded that this incident, whilst unfortunate, has played any role in the applicant’s cessation of his studies in 2018, which led to the cancellation of his Student visa.

35. The applicant confirmed in oral evidence that he was not enrolled for this lengthy period and that he remained onshore for all but some three weeks of this period. When asked how he spent his time during this period of non-enrolment, the applicant stated that he began working as a cleaner at around this time, working four hours a day, five days a week. He continued in this job for approximately a year until his visa was cancelled. The Tribunal accepts that a Student visa allows for the visa holder to work whilst studying, subject to particular visa conditions. On the evidence however, the Tribunal is of the opinion that at least during the period of his non-enrolment, the applicant's main focus appeared to be his employment rather than the study purposes for which his Student visa was granted.

36. At hearing the applicant mentioned that sometime in 2018 he met another Sri Lankan student with whom he began a personal relationship, lasting a year. The relationship ended as his parents did not approve of his girlfriend. This caused him some emotional pain which was a further distraction from his studies.

37. The Tribunal has regard to the applicant’s claims set out in the written submissions and in his oral evidence. Whilst the Tribunal accepts that the applicant’s personal circumstances and issues may have played some part in the his non-compliance with condition 8202(2)(a), there is no evidence before the Tribunal which demonstrates there were circumstances beyond his control which prevented him from complying with condition 8202(2)(a).

38. In addition, there is no information before the Tribunal to indicate that the applicant applied to the relevant education provider to defer his studies for extenuating or compelling reasons. The Tribunal is satisfied there were no extenuating circumstances beyond his control for his failure to remain enrolled in a registered course for the duration of his Student visa.

39. The applicant was aware that remaining enrolled in a registered course of study was a condition of his visa and it was his responsibility to ensure that he complied with the conditions of his visa. The Tribunal therefore gives this factor considerable weight in favour of cancellation of the visa.

    Past and present behaviour of the visa holder towards the department

40. According to the decision record, there was no evidence that the applicant had been unco-operative towards the Department. The Tribunal give this some little weight in favour of its discretion to set aside cancellation of the visa.

    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

41. If the applicant’s visa is cancelled, he will be given a time limited period in which he may make plans to leave Australia and he will be limited in his ability to apply for another visa. The applicant has not raised concerns in regards to this. The applicant is not currently in detention and it appears unlikely that he will be detained if the cancellation occurs. The Tribunal therefore gives this factor minimal weight in favour of its discretion to set aside cancellation of the visa.

    whether there would be consequential cancellations under s.140

42. The Tribunal is satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.140 as a consequence of the applicant’s visa being cancelled.

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

43. In this case it does not appear that this consideration is relevant and the applicant has not made any claims which would relate to this consideration.

    Any other relevant matters

44. The Tribunal finds that there are no other relevant matters.

    Summary

45. As noted above, the applicant remained unenrolled for a period exceeding 10 months in breach of his visa conditions. The Tribunal is mindful of the lengthy period of non-compliance and having considered the evidence individually and cumulatively, the Tribunal is not persuaded that there are grounds upon which it should exercise its discretion to set aside cancellation of the visa.

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

   DECISION

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

   Stephen Conwell
   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.