Navimana Widanage (Migration) - [2019] AATA 6897

Navimana Widanage (Migration) [2019] AATA 6897 (16 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sandun Chathuranga Navimana Widanage
CASE NUMBER:  1904802
HOME AFFAIRS REFERENCE(S):         BCC2018/5318175
MEMBER:Dominic Triaca
DATE:16 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 16 October 2019 at 5:22pm

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994, Schedule 8 Condition 8202
CASES
de Angelis v de angelis [2003] VSC 432
Dimic v Djekovic (2014) NSWSC 1502

Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204
R (On the application of M) v Slough Borough Council [2008] UKHL 52

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 18 February 2019 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).
The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study since 20 February 2018. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 31 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Hetti Dona Gayamini, the applicant’s Partner.
The applicant was represented in relation to the review by his registered migration agent.
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
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?
Condition 8202, as it applies in this case, requires the visa holder to adhere to certain course enrolment, attendance and academic progression requirements.
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant confirmed in his evidence before the Tribunal that his enrolment was cancelled on 20 February 2018 and he was not enrolled in any registered course for a period of approximately 12 months. On 11 February 2019, the applicant obtained a further enrolment in a Certificate IV in New Small Business at the Australian Institute of Entrepreneurship due to commence on 4 March 2019 and a further CoE in a Diploma of Leadership and Management at the Australian Institute of Entrepreneurship commencing on 7 October 2019 and finishing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 6897
Decision Date: 16 October 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Navimana Widanage, a Sri Lankan citizen who sought review of the cancellation of his Student (Temporary) (Class TU) Subclass 500 visa. The dispute arose because Mr. Widanage had ceased enrolment in a registered course of study, a condition of his visa. He presented various personal circumstances, including family medical issues, financial hardship, and his own health concerns, as reasons for his academic difficulties and subsequent visa cancellation.

The primary legal issue before the Tribunal was whether, having found that the applicant had not complied with a visa condition, the Tribunal should exercise its discretion to cancel Mr. Widanage's visa. This required the Tribunal to consider the specific circumstances of the case, including the applicant's submissions and relevant departmental policies, to determine if cancellation was warranted. The Tribunal also considered whether any international obligations or the best interests of children would be breached by cancellation, and whether ties to Australia were relevant for a temporary visa holder.

The Tribunal reasoned that the intended consequences of migration legislation include visa cancellation for non-compliance with conditions, and therefore, the hardship faced by the applicant as a result of cancellation was given minimal weight. It found that Australia's international obligations were not engaged by the circumstances. While acknowledging the applicant's evidence of personal and family medical issues, financial difficulties, and his own health, the Tribunal concluded that these factors did not outweigh the non-compliance with the visa condition. The Tribunal also noted that the applicant had not requested a deferment of his studies and had retained employment.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Widanage's Subclass 500 visa, finding that, when considering all the circumstances, cancellation was the appropriate course of action.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.’Applicant’s Evidence The applicant is a 22 year old citizen of Sri Lanka. He arrived in Australia on 12 October 2016 having been granted a student visa on the basis that he intended to study an approved Higher Education level course of study including Swinburne Foundation Year; Diploma of Engineering and Bachelor of Engineering. He says that he enrolled in foundation studies at Swinburne in 2016 but he did not complete the first semester. His father became ill, suffering a heart attack and this caused him stress as he was unable to return to Sri Lanka. His father required a bypass procedure in March 2017. Due to financial circumstances he changed to study commercial cookery but did not commence this study. He instead enrolled in a General English course in May 2017 but says he did not study, he “just enrolled“. He says that this was due to his worry about his father’s condition. He was unable to pay his fees on account of loaning a friend $4000 that was not repaid and this led to the cancellation of his enrolment at that time. He says that around that time he [experienced a medical condition] and lost a significant amount of money. He was working around this time at a cleaning company. Between 22 August 2017 and 11 September 2017, the applicant travelled home to Sri Lanka. His family convinced him to return to Australia to complete his studies. He returned to Australia and enrolled in a Certificate III in Light Vehicle Mechanical Technology at Baxter Institute which he commenced in September 2017. He says that his studies were derailed as his Partner, after failing her exams, [suffered a medical episode] and he rushed her to hospital. This led him to miss classes as he did not want to leave the house as he was afraid there would be a repeat episode. His enrolment at Light Vehicle Mechanical Technology was cancelled due to non-payment of fees in February 2018. He says that after the enrolment was cancelled, he found himself unable to study. He worked for a cleaning company to pay his living expenses. The applicant’s Partner [experienced a health condition] in mid-2018. He says this was a stressful period and [his Partner] [underwent a procedure] which was a traumatising experience for them both. He claims there was further financial stress involved in meeting the costs of the medical procedure in about October 2018. The applicant says that he will suffer hardship if he is forced to return to Sri Lanka without any qualifications. He feels anxiety about returning home “with nothing”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal considers these are the intended consequences of the legislation and accordingly gives this factor minimal weight in favour of the applicant. Whether any international obligations, including non-recoupment and best interests of the children as primary consideration, would be breached as a result of the cancellation. The circumstances of the case are not such as to engage Australia’s international obligations.If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia. This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.Any other relevant matters. The applicant provided the Tribunal with medical certificates in relation to his own health from the [named medical centre] stating that he was unable to study for periods between 26 and 30 June and 10 and 14 July in 2017. The Tribunal has considered this evidence but finds it does not assist the application. There appear to be no other relevant matters of significance in relation to the present application for review. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.D TriacaMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.