Naranapiti Pathirannehalage (Migration)

[2021] AATA 548

Naranapiti Pathirannehalage (Migration) [2021] AATA 548 (3 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lahiru Srilal Pathirana Naranapiti Pathirannehalage

CASE NUMBER:  1930313

HOME AFFAIRS REFERENCE(S):          BCC2019/1450918

MEMBER:Meredith Jackson

DATE:3 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 03 March 2021 at 5:17pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – applicant’s academic history in Australia – unsatisfactory attendance – non-payment of fees – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

Summary

1. This is an application for review of a decision dated 24 October 2019 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 Student visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Sri Lanka. He was granted a student visa on 18 February 2017. The visa was issued in order for him to undertake study in Australia. The delegate cancelled the visa under s.116(1)(b) of the Act, because the holder had not complied with a condition of the visa. Specifically, that he had not complied with 8202(2)(a) of condition 8202, which requires that he remain enrolled full-time in a registered course.

3.    In this review, the Tribunal must decide whether the ground for cancellation is made out, and if so, whether the proper exercise of its discretion requires the visa to be cancelled.

4.    On the day of the hearing, 23 February 2021 at 11am, the applicant did not appear as scheduled. A Tribunal officer attempted to call his registered migration agent Suman Dua of Sirus Migration on the number supplied and was informed the agent no longer worked for the agency and no other representative had been appointed to the applicant’s case. The applicant was reached on a different telephone number and a new representative from the same firm was appointed.

5.    For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

Case summary

6.    The applicant applied for the visa under review on the grounds that his intended purpose of travel to and stay in Australia was to study. After the visa was granted, the applicant was enrolled in Extended Foundation and Bachelor of Information Technology (Bachelor of IT) courses. For various reasons he did not complete the courses. He was not enrolled as required for a period of 14 months between May 2018 and July 2019, which led to the finding that he breached a condition of his visa. He is now enrolled in a new Bachelor of IT at his university and undergoing an Academic Intervention process.

Documents provided to the Tribunal

7.    The applicant provided the Tribunal a copy of the delegate’s decision and Confirmation(s) of Enrolment in a Foundation Course and a Bachelor of Information Technology for study at Queensland University of Technology (QUT) from 16 October 2019 to 31 December 2022. The applicant did not provide further documents to the Tribunal in support of his case. The delegate’s decision states, in summary:

a.Information in the Provider Registration and International Student Management System (PRISMS) indicated the applicant was not enrolled in a registered course from 31 May 2018 until 12 August 2019 and therefore does not meet the requirements of subclass 8202(2)(a);

b.There appeared to be a ground for cancellation of the visa as the applicant had not complied with condition 8202;

c.On 24 April 2019 the applicant was notified of the intention to consider cancellation (NOICC) and the notice invited him to respond in writing;

d.On 3 May 2019, the applicant responded, and agreed that there are grounds for cancellation;

e.The applicant stated in the response that he thought that he was enrolled because he had paid his tuition fees through the university online system by credit card, however, the payment must not have gone through due to a system error. He stated that, “apparently”, QUT sent him an email regarding his late payment and also the enrolment cancellation to his QUT email account, but he was not able to access it because it had been restricted;

f.The PRISMS record shows he enrolled approximately four months after the receiving the Notice (NOICC); and that he then deferred his start date for a further two months to 16 October 2019;

g.Based on the information before the delegate, the delegate was satisfied there was a ground for cancellation under s116(1)(b) of the Act;

h.The delegate was satisfied that grounds for cancellation exist under s.116(1)(b) for non-compliance with condition 8202 and therefore decided to cancel the visa. The delegate’s reasons were that (the applicant’s) visa was granted subject to condition 8202. As he was not enrolled in a full time registered course between 31 May 2018 and 12 August 2019, he no longer meets the requirement of subclause 8202(2)(a). Therefore, he has not complied with a condition of his visa;

i.After considering all the available information, the delegate was satisfied that the grounds for cancelling the visa outweigh the reasons not to cancel the visa and decided to cancel the visa.

Does the ground for cancellation exist?

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.

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)

·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).

10.      On 31 May 2018, the applicant’s enrolment in an Extended Foundation Program was cancelled for non-payment of fees. He did not secure confirmation of enrolment in any other course until 12 August 2019, when he was provided a COE for a Standard Foundation course at QUT; the COE is for commencement on 16 October 2019.

11.      The applicant does not dispute that he was not enrolled as required in the 14 month period between 31 May 2018 and 12 August 2019.

12.      The applicant stated at the hearing that he is currently enrolled in a Bachelor of IT that commenced on 20 July 2020 and which he is due to complete on 30 June 2023. The Tribunal accepts that he is currently enrolled.

13.      The Tribunal is satisfied the applicant was not enrolled in a full time registered course between 31 May 2018 and 12 August 2019 as required. For this reason, the Tribunal finds the ground for cancellation is made out.

14.      The Tribunal finds the applicant has not complied with condition 8202(2)(a).

The discretion

15.      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 purpose of the visa holder’s travel and stay in Australia

16.      The applicant was granted his Subclass 500 visa for the purpose of studying a Bachelor degree in Australia. He is currently holding a Bridging (BVE) visa. The Tribunal has no evidence before it that the purpose of the applicant’s travel and stay in Australia was for anything other than study.

17.      There is no evidence before the Tribunal that while he held the visa, the applicant used it for purposes other than the basis on which it was granted.

Circumstances in which the ground for cancellation arose

18.      The circumstances in which the ground for cancellation arose were that the applicant ceased being enrolled in a registered course of study on 31 May 2018 and did not enrol again until 12 August 2019, for a commencement in October 2019.

19.      Asked at the review hearing as to why he was not enrolled during the relevant period, the applicant responded that he is now enrolled; he is studying a Bachelor of Information Technology at QUT.

Section 359AA

20.      The Tribunal, adopting the procedure in section 359AA of the Act, referred the applicant to information about him held in the Provider Registration and International Student Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision. The Tribunal outlined the information in the database, which is a chronological record of the applicant’s academic history in Australia: information about his enrolments, commencements, cancellations and course finish dates. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and the applicant was invited to comment on it. The Tribunal asked if he wished to seek further time to consider it. The applicant proceeded to comment on the information immediately. After a period in which the applicant appeared not to understand the detail of the entries, the Tribunal granted an adjournment of 15 minutes to allow the applicant to consider the information with his new representative. The adjournment was then extended at the applicant’s request, to allow additional a total of 30 minutes extra time to consider the information, which consisted of eight enrolment entries between 22 February 2017 and 30 June 2023. When the hearing resumed the applicant said he had found the entries did not reflect what had actually happened.

21.      The applicant stated that his Bachelor of IT enrolment was cancelled by his university after he could not meet the tuition payment. His parents had committed to funding him for study but thereafter they experienced financial difficulty in Sri Lanka;

22.      During the period in which he was not enrolled, that is, between 31 May and 12 August 2019, the applicant said he started looking into doing another course and also went through the process of appealing the course cancellation; he was trying to get back into QUT to do the same course, and he also tried to find other universities or to change the course, but he was unsuccessful. He started a new Bachelor of IT at QUT in 20 July 2020.

23.      The applicant sought further time to consider and respond to the information put to him under section 359AA. The Tribunal granted him seven days to provide further submissions.

24.      On 2 March 2021 the applicant provided a written statement regarding his PRISMS record; a copy of his Foundation Program certificate; and details of a QUT International Student Intervention Strategy in his name. The written statement differed somewhat from the evidence provided spontaneously in the hearing. He claimed, relevantly:

a.He did not finish his first course, an Extended Foundation course because he failed a subject; because he did not finish the course, the university later offered him a Standard Foundation course which he completed;

b.His enrolment in a Bachelor of Information Technology was cancelled on 1 March 2018 because he had not completed the Foundation course on time and the courses were packaged;

c.The only COE cancelled for non-payment of fees was an Extended Foundation program which led to the visa cancellation. He did not realise the fees were not paid and kept going to the university. Once his agent found out in May 2019 that fees for the course had not been paid, it was too late to enrol for July 2019, so he enrolled for October 2019 and remains enrolled.

25.      The Tribunal has considered the response provided by the applicant post-hearing concerning his study record; and the responses provided in the hearing.

26.      The first claim made post-hearing is that he could not complete his initial Extended Foundation course because he failed a subject. The Tribunal notes the PRISMS record cites unsatisfactory attendance for the cancellation. Having considered both aspects, the Tribunal concludes that it is likely the applicant failed the subject due to unsatisfactory course attendance.

27.      The second and third claims post-hearing are that the Extended Foundation Programs which followed the first course were not completed either, and the university offered him the Standard Foundation Program, and he completed it. For the purpose of this decision, the Tribunal accepts the claims that he completed some sort of Foundation studies as he was accepted into a degree course by the same university, however the Tribunal has no evidence before it that he completed the Standard Foundation course. His PRISMS record states the course was cancelled.

28.      The fourth claim is that the first Bachelor of Information Technology COE was cancelled because it was packaged with the Extended Foundation Program. The Tribunal accepts the claim.

29.      The fifth claim is that he did not realise his fees were not paid and once he found out in May 2019, it was too late to enrol for July 2019, therefore he enrolled for October 2019 and remains enrolled. The Tribunal does not accept that he did not know his fees were not paid and notes he has provided no supporting evidence, such as correspondence records, to support the claim. The Tribunal does not accept that he first found out from his agent in May 2019, and by then it was too late to enrol for July 2019. Again, no supporting evidence is provided to support the claim. The Tribunal notes the period of non-enrolment is between 31 May 2018 and 12 August 2019, a fact that was not candidly addressed by the applicant in the hearing, despite the Tribunal’s efforts to provide him with extra time in which to consider his responses. It was addressed post-hearing.

30.      The Tribunal has considered the claim that the applicant thought he had paid his tuition fee with his credit card, but that a system error “must have” disrupted the payment; and that he did not see the advice from his university about the default because he was not able to access his email account due to an account lockout. This is not satisfactorily supported in evidence. The Tribunal also has no supporting evidence before it that the applicant’s parents faced financial difficulty or that he could not otherwise pay course fees. There is no supporting evidence before the Tribunal that a credit card payment failed, and that the applicant was unaware of the failure because his QUT email account was suspended. The Tribunal has no supporting evidence before it that his QUT email account was shut down before he learned his course had been cancelled.

31.      The Tribunal weighs these considerations against the applicant.

The extent of compliance with visa conditions; behaviour towards the department

32.      On the evidence before the Tribunal, the applicant has not complied with condition 8202 of his visa, as described above. After his course was cancelled on 31 May 2018, he did not notify the department of his changed circumstances and did not remain enrolled as required. He stated that his agent told him of the course cancellation, but he was unaware of any obligation he may have had to inform the department of any changes in his circumstances. The Tribunal notes the applicant has otherwise cooperated with the department and did not ignore the notice of intention to cancel his visa. He responded to the notice promptly. 

33.      The Tribunal affords the applicant’s compliance some weight in his favour.

The degree of hardship that may be caused by the cancellation to the applicant and his family

34.      The applicant stated in his post-hearing submission that his problems began in late 2017 when he started “failing the subjects”; he was heartbroken and confused. It was his first time away from home and firs time studying in a university. As an only child, he was ill-equipped to cope with financial and administration duties. He feared telling his parents and agent about his troubles, tried to sort them out on his own, and was scared to ask for money from his family again. He attended some meetings at QUT but could not get back to his studies. Once he got the visa cancellation notice he got really scared and his agent managed to get him re-enrolled, his parents sent funds and he understood his mistakes. He has spent over $75,000 on his study and living expenses in Australia and getting a visa cancelled would be devastating since he has found his feet at university. The Tribunal notes the applicant is now subject to an Academic Intervention process at QUT for which he has supplied supporting evidence.

35.      The applicant claims a visa cancellation will mean that he will suffer hardship in that he needs to finish his studies before he can go back home. His parents have big expectations of him as the only child, and he needs qualifications. He has now started a degree he needs to finish. He has only one and a half years left on his studies and he has never changed course direction since he arrived.

36.      The Tribunal accepts that the applicant will suffer hardship in the form of familial and possibly cultural embarrassment if he does not complete his studies. However the Tribunal considers that the applicant has been given many opportunities through his visa grant, his successive enrolments in Foundation and IT courses at his university and, with the possible exception of a Standard Foundation course which he claims to have completed, he has not finished a course since arriving in 2017.

37.      The Tribunal has considered the hardship that the applicant may suffer when he returns without qualifications but is mindful that he may be in a position to apply any skills gained and experience had in Australia by continuing his studies or starting a career in his home country.

38.      The Tribunal affords these considerations some weight in the applicant’s favour.

Whether there would be consequential cancellations under s.140

39.      The applicant has no dependants and no consequential cancellations arise in this matter.

Whether there are mandatory legal consequences

40.      The applicant has not raised the issue of legal consequences arising from the cancellation. However the Tribunal has considered the likely impacts of legal consequences in the case. The Tribunal accepts that if the applicant is forced to leave Australia, he will be prohibited from applying for most visas while he is onshore and, in those circumstances, will be barred for applying for Australian temporary visas for three years from the date of the cancellation. Further, he may be subject to detention if he does not engage with the department after visa cancellation and voluntarily depart Australia.

41.      In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately, he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include student visas. Consequently, this limits the visa applications the applicant can make whilst onshore.

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

42.      In considering whether to exercise its discretion to cancel the applicant’s visa, policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR). No information is before the Tribunal that a cancellation outcome would breach of any of Australia’s international obligations and the Tribunal affords this consideration no weight.

Conclusion

43.      The Tribunal has carefully considered all the applicant’s claims and evidence and weighed its considerations in the case accordingly. The Tribunal does not consider the combined weight of the individual elements that it weighs in the applicant’s favour, or any of those elements alone, to be sufficient to justify setting aside the delegate’s decision. Therefore, having regard to all the evidence before it, and balancing the matters in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s student visa.

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

DECISION

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

Meredith Jackson
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

(a)a Defence student; or

(b)     a Foreign Affairs student; or

(c)      a secondary exchange student.

(2) A holder not covered by subclause (1):

(a)      must be enrolled in a full time registered course; and

(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.