Naguleswaran (Migration)

[2019] AATA 3592

Naguleswaran (Migration) [2019] AATA 3592 (4 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Cinduyan Naguleswaran

CASE NUMBER:  1820406

HOME AFFAIRS REFERENCE(S):           BCC2018/1296009

MEMBER:D. Triaca

DATE:4 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 04 July 2019 at 8:33am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant did not comply with condition 8202  – was not enrolled in a registered course – sister suffering from significant mental health issues – significant emotional hardship– decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8

CASES
Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 July 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that applicant was not enrolled in a course of study and had breached condition 8202(a). 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 28 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from his cousin, Bruntha Gobinath..

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

5. It is a long established principle that the Tribunal on review is considering the matter afresh based on the material before it and is not bound by the findings of the delegate. It is also well established that the Tribunal should have regard to lawful government policy unless there are cogent reasons to the contrary. The tribunal has not identified any such reasons.

6. While civil law concepts such as “onus” and “standard of proof” are generally inappropriate in administrative decision making, in cases where the existence of certain facts forms the basis for the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision maker must be satisfied about the existence of the facts before exercising the power. In this respect, the obligation is on the decision maker to be so satisfied and not on the former visa holder to establish the facts or grounds do not exist. See Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 at [25] and [32].

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. 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)

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

11. In his written and oral evidence, the applicant confirmed that he was not enrolled in a full time registered course of study from 13 September 2017 and therefore, does not meet the requirements of condition 8202(2)(a).

12. 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

13. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

    The purposed 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.

14. The is a 23 year old citizen of Sri Lanka. He arrived in Australia on a student visa in 2016.

15. In support of his application he has provided detailed evidence including a Statutory Declaration and written submissions. His cousin, Bruntha Gobinath also provided a Statutory Declaration and gave evidence in support of the application. He provided further medical documentation in support of his claims in relation to his sister‘s mental health issues and a letter from his mother in Sri Lanka dated 27 June 2019. The Tribunal was also provided with Certificate of Completion of Monash University Foundation year dated 23 June 2016 and IELTS certificate of completion. The Tribunal has read and had regard to the documentation provided by the applicant.

16. The applicant finished his schooling with good scores and qualified for the Foundation Year course offered by Monash University (MUFY) at the American National College located at Kollupitiya, Colombo in Sri Lanka. He successfully completed the MUFY and was admitted into an Associate Degree in Engineering Technology at Royal Melbourne Institute of Technology (RMIT) in 2016.

17. The Associate Degree is a pre-requisite to enrolment in the Bachelor of Engineering (Aerospace Engineering) (Honours).

18. The applicant arrived in Australia in July 2016 and commenced studying at RMIT.

19. The circumstances leading to the cancellation of the applicant’s enrolment are well set out in the applicant’s statutory declaration and he elaborated on these matters in his evidence before the Tribunal. It is fair to say that his life took a significant turn for the worse towards the end of 2016 which provided some context to his lack of academic progress.

20. He gave evidence to the effect that in or about November 2016 his sister, resident in Sri Lanka, experienced serious mental health issues and suicidal ideology. This evidence was well documented by the applicant who, in addition to his oral evidence, provided a letter by Dr Jeyalingam Sajitharan dated 21 June 2019 and Dr Peris (Consultant Psychiatrist) dated 24 June 2019 and a letter from his mother in Sri Lanka and I accept that the during 2016 and 2017 the applicant’s sister was indeed suffering from significant mental health issues.

21. The applicant’s evidence was that family concerns in relation to the state of his sister’s health were heightened in about November 2016 and she exhibited concerning behaviour. This led him to make the decision to return home to Sri Lanka on 15 November 2016, a decision that resulted in his failing to undertake the final exams for first semester of his course.

22. The applicant’s further evidence in relation to this visit to Sri Lanka is that he attempted to assist his mother in seeking medical attention for his sister. Firstly from conventional medicine and second by visiting a witch doctor. It is not clear whether any of these interventions was effective in the long term and I accept he returned to Australia in January 2017 still harbouring concerns about this sister’s well-being. The applicant states he did not contact RMIT and advise them of his plans prior to leaving Melbourne. However, when he did return and spoke to officers at RMIT, RMIT’s position was that he would need to re-sit the four subjects and this could not be commenced until mid – year. He resolved to remain in Australia and re-commence his studies in July 2017.

23. In the meantime, his sister‘s issues did not resolve and he remained in regular contact with his family. Matters worsened in mid-year and he again returned to Sri Lanka in an attempt to assist his sister and resolve a dispute with his extended family. He returned to Australia on or about 17 July 2017.

24. Upon his return, the applicant did not re-enrol at RMIT. He states that he was emotional and stressed. He states he was unable to concentrate on his studies. He continued to be in contact with his family in Sri Lanka and updated on his family situation. He reports that he was very upset as a result of his family situation exacerbated by his visits to Sri Lanka and he did not feel able to recommence his studies. The practical effect of his return to Sri Lanka in 2016 was that his first semester study was wasted and his progress was significantly delayed.

25. In September 2017, RMIT cancelled his enrolment.

26. It is fair to say, that travelling home to Sri Lanka and being exposed to a difficult family situation was stressful and confronting for the applicant and the Tribunal accepts that he experienced emotional hardship during that time. The Tribunal has regard to the fact he was at a young age, isolated from his family and this impacted on his ability to study.

27. The Tribunal accepts the applicant’s evidence that his purpose of travel to Australia was to study in the course at RMIT with a view to undertaking the further study in Aerospace Engineering and that he has a genuine desire to complete this course so he can return to Sri Lanka with a useful and reputable qualification.

28. The applicant states further, and the Tribunal accepts, that he has been in contact with RMIT and RMIT has indicated that there is no impediment to his return, subject to resolving his visa issue. The applicant’s evidence is that if his visa is not cancelled, he will return to study at RMIT.

29. The Tribunal accepts that he has a compelling need to remain in Australia in order to complete his course. This weighs against cancellation.

    The extent of compliance with visa conditions.

30. The applicant confirmed that he has not been enrolled in a registered course of study since September 2017. At the time of the delegate’s decision, he had not been enrolled for a period of approximately 8 months.

31. The Tribunal considers that there has been a substantial period of non-compliance and gives this some weight toward the visa being cancelled.

32. There is no evidence the applicant has failed to comply with any other visa conditions. I accept that this weighs in the applicant’s favour.

    Degree of hardship that may be caused

33. The Department guidelines require the Tribunal to consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the ground for cancellation existing. The guidelines state that as a general rule, a visa should not be cancelled where the circumstances in which the cancellation arose were beyond the control of the visa holder.[1]

    [1] Procedures Advice Manual – PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s140)

34. Extenuating circumstances in the context of the visa applications was discussed in some detail by Gilmour and Logan JJ in Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172[2] their Honours stating extenuating circumstances beyond the appellant’s control were “circumstances which led to or were causative of the grounds upon which her visa cancellation arose.”[3]

    [2] See [52] – [65]

    [3] At [63]

35. The applicant faced significant emotional hardship over an extended period of time. The applicant’s returning home to Sri Lanka had the practical effect of disrupting his studies and the related emotional hardship impacted on his academic performance and ability to attend classes and these circumstances led to or were causative of the grounds upon which his visa cancellation arose. It follows that the necessary causative element is made out.

36. The Tribunal also takes into account that the cancellation of the applicant’s visa is likely to cause financial hardship due to fees expended on study in Australia and also the MUFY in Sri Lanka that would be “thrown away.“

37. On balance these matters weigh against cancellation.

    Past and present behaviour of the visa holder towards the department.

38. It is submitted that the applicant has always been truthful and cooperative with the Department and there is no evidence to suggest this is not the case. The Tribunal gives this factor some weight in his favour.

    The mandatory legal consequences of cancellation.

39. The applicant gave evidence that if the visa remained cancelled he would return to Sri Lanka and therefore there is no indication he would become unlawful or be subject to detention and I give this factor no weight.

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

40. There were no submissions made nor was there any evidence before the Tribunal identifying any international obligations that will be breached. As such, this factor is neutral and does not weigh against cancellation.

    Any other relevant matters.

41. The Tribunal has had regard to the written and oral evidence of Ms. Gobinath, the applicant’s cousin. The applicant has been living with Ms.Gobinath and her family for some time and she indicated she is prepared for this to continue to support the applicant in his return to study. She was an impressive witness who has taken her cousin into her home and described his maturity over time. She stated that she is confident he will take advantage of a second chance.

42. I also accept the applicant’s evidence that his sister’s issues appear to have stabilised and will no longer pose a distraction.

43. The Tribunal has considered the totality of the applicant’s circumstances and the evidence before it and in all the circumstances considers that the breach of the enrolment requirement occurred in extenuating circumstances.

44. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

45. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    D. Triaca
    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.