Navimana Widanage (Migration)
[2019] AATA 6897
•16 October 2019
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
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – enrolment in a registered course ceased – applicant changed to Vocational courses after visa cancellation – family medical issues – financial hardship – limited academic progress – applicant retained employment – no deferment requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994, Schedule 8 Condition 8202CASES
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 on 4 October 2020. It is noteworthy that the applicant did not obtain these CoE’s until after he received the Notice of Intention to Consider Cancellation of the Visa from the Department on 4 February 2019.
In these circumstances, the Tribunal finds that the applicant was not enrolled in a registered course of study for a period of approximately 12 months from 20 February 2018 and was in continuous breach of visa condition 8202(2) for that period.
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
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”.
Ms Dona Gangu, the applicant’s Partner, attended the hearing and confirmed the relevant matters insofar as her [medical episode] and her subsequent medical procedure. She also provided documentary evidence of her [health condition] in October 2018 and also her treatment at Monash Emergency on 8 November 2017. I accept her evidence.
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
The term compelling was the subject of detailed consideration by Crennan J (as her Honour was then) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs[1]. Her Honour set out the jurisprudence in relation to the words “compel” and “compelling” and the various dictionary meanings and stated, relevantly:
“At [35] A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.
[1] Paduano v Minister for Immigration and Multicultural and Indigenous Affairs & Migration Review Tribunal [2005] FCA 211; (2005) 143 FCR 204 [31] – [45]
Commenting further on the adjective “compelling” in the Regulations, at [37], Crennan J said, “The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’.“
“Need” is a relative concept.[2] It has been described as different from “want”. Need has been said to be a more flexible word than it may first appear. “In need of” plainly means more than want, but if falls far short of “cannot survive without.”[3] Need and want are not interchangeable.
[2] Dimic v Djekovic (2014) NSWSC 1502 per Hallen J at [111]; de Angelis v de angelis [2003] VSC 432, per Dodds Streeton J, at [45];
[3] R (On the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]
The Tribunal accepts that the applicant’s initial purpose of travel to Australia was to study and that he enrolled in a registered course in accordance with that purpose. However, it is apparent on the applicant’s evidence that his purpose evolved quite quickly as he did not complete even the first semester and he did not pay all of the required fees.
Accordingly, the Tribunal considers that at some point in 2016 or early 2017, studying ceased to be the applicant’s primary purpose of residing in Australia.
The applicant states that he wishes to return to study. However, The Tribunal notes that the applicant’s academic history in Australia is poor. After failing to complete the initial course, he transferred into commercial cookery but did not commence and then General English which he did not complete. There is no evidence of any academic progress. In 2017 he enrolled in the Certificate III in Light Vehicle Technology but did not complete this course and his enrolment was cancelled due to non-payment of fees in February 2018.
The courses the applicant obtained a CoE for in February 2019 do not appear to bare any connection to the Engineering courses he hoped to study on his arrival or any of other courses he has enrolled in but not completed during his time in Australia. Having regard to these circumstances, and his lack of academic progress since 2016, the Tribunal considers it is unlikely the applicant will return to study in any meaningful way.
However, taking his evidence at its highest, and accepting he holds an intention to return to study, the Tribunal considers that any present intention to return to study must be tempered by the fact he has made no academic progress in his time in Australia and his conduct in Australia set out below.
Accordingly, the Tribunal does not consider the applicant has demonstrated any compelling need to remain in Australia and gives this weighs in favour of the visa being cancelled.
The extent of compliance with visa conditions.
The applicant confirmed that he was not enrolled in a registered course of study from 20 February 2018 until the about 11 February 2019, being a period of approximately 12 months. This was a substantial period of time. Therefore, the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for a substantial period of time weighs towards the cancelling of the visa unless the Tribunal accepts the reasons for non- enrolment.
In his evidence, the applicant stated reasons for his non enrolment is the result of his family’s financial problems which created a situation in which he did not have the level of financial support he had anticipated and a series of issues relating to his Partner’s health.
The Tribunal considers, having reviewed the applicant’s evidence, that whilst he may have had some financial problems to contend with in Australia, and, as a couple, the applicant and his Partner have had to deal with some difficult circumstances, the evidence falls well short of demonstrating that the applicant’s failure to progress academically and comply with the conditions of his student visa are due to matters outside his control in any way.
The Tribunal accepts that the applicant’s father may have suffered from ill health in March 2017. This is apparent on the medical evidence submitted. He says that this led to financial problems and also he was unable to focus on his General English course out of concern for his father.
The Tribunal accepts that the applicant was concerned for his father and he is likely to have suffered some resultant anxiety. Overseas students are away from their family and support network and being in a foreign country during a family emergency may be a difficult. However, this episode is said to have occurred in March 2017, approximately 11 months before the cancellation of the applicant’s enrolment and the Tribunal does not accept that his father’s health problems created a situation whereby the applicant was effected to such an extent that he was unable to study for an extended period of time culminating in the cancellation of his student visa.
Similarly, the Tribunal accepts that if the applicant was financially supported by his father, then his father suffering ill health may have placed the applicant in a difficult financial position. However, the Tribunal does not consider that it reasonably follows that the applicant’s financial position was such that he was unable to study for an extended period.
The Tribunal found the applicant’s evidence in relation to his financial difficulties generalised and lacking in detail. The Tribunal accepts he may have suffered some financial difficulties, but does not accept financial issues caused his breach or that his breach was caused by issues outside his control. The Tribunal considers that overseas students are responsible for being able to meet the financial requirements of their education. If the applicant truly found that he was financially unable to pay his fees, he had options open to him including seeking a deferral or returning to his home country until such time as he was financially secure. The applicant chose to remain in Australia on a student visa in breach of his visa conditions for an extended period of time and this weighs against the application.
Other matters relevant to the applicant’s finances weigh against the application. He [experienced a medical condition] for six months. He loaned money to his friend that was not repaid. Whilst it is not the applicant’s fault that the money was not repaid, it was his choice to loan money and prioritise this use of funds over payment of course fees. These matters indicate that the applicant’s financial problems were not simply due to his father’s medical condition and also demonstrate that applicant’s purpose in Australia was not studying from very early in his time here.
Further, the applicant says he was working during 2017 at a cleaning company. This further reinforces the Tribunal’s impression that the applicant’s priorities were not studying during this period of time. He was in a position to work and earn money but chose not to utilise his income to pay for his course fees.
In addition to financial matters, the applicant’s evidence also referred to issues that he and his Partner experienced during the relevant period. He sought to rely on the fact of his partner’s [medical episode] in or about November 2017 as the cause of his failure to maintain his enrolment in Certificate III in Light Vehicle Mechanical Technology, and relied on the trauma associated with her undergoing a [procedure] in October 2018 as a reason for his continued residence in Australia in breach of his student visa conditions that continued until 2019.
The Tribunal was impressed by the applicant’s Partner who gave evidence and spoke candidly about these matters. Whilst she appears to carry some blame for the applicant’s predicament, the Tribunal does not consider that she ought to bare any responsibility for the applicant’s breach of his student visa conditions in any way.
The Tribunal accepts that the applicant would have been naturally concerned about his Partner’s hospitalisation in November 2017. At the time the applicant was enrolled in a Certificate III in Light Vehicle Mechanical Technology and claims he was not able to return to study out of concern for her health. It does not appear to the Tribunal that this concern would naturally or logically manifest itself a situation in which the applicant was unable to study for an extended period of time, noting that her hospitalisation for only a short period. Further, the reason given for the cancellation of the applicant’s enrolment in that course was failure to pay fees. Again, if the situation had warranted it, the applicant could have sought to defer his studies on compassionate grounds but there is no evidence he attempted to do so.
The Tribunal does not consider it likely that the applicant’s breach of the student visa was caused or impacted by his Partner’s unplanned pregnancy or subsequent termination. The reality is that on the evidence, the medical procedure occurred in October 2018 by which time the applicant‘s enrolment had been cancelled for some time and he had been in living in Australia in breach of his student visa conditions since about February 2018.
The Tribunal also notes that the applicant appears to have managed to continue working as a cleaner during 2018 notwithstanding his other issues. The Tribunal does not accept, on the evidence, that the applicant’s situation was one in which he was able to work but could not study.
The Tribunal considers the applicant’s behaviour since arriving in Australia demonstrates a lack of commitment to his studies and he did not satisfactorily explain his failure to maintain his enrolment in a registered course or his failure to remedy that situation and the Tribunal gives this factor weight in favour of cancelling the student visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship).
The applicant states he feels that he would lose everything and be “meaningless” if he returns to his home country without any qualifications. He says he feels shame and cannot face his father. The Tribunal accepts that returning to home without the qualifications he sought to achieve may cause some stress and anxiety. There may also be some financial hardship in the sense that the applicant may consider fees previously paid toward courses in Australia have been wasted.
However, whilst the Tribunal accepts that the applicant may suffer some degree of hardship if the visa remains cancelled. However, on the evidence before the Tribunal, any hardship is not significant. The Tribunal gives this minimal weight towards not cancelling the applicant’s visa.
Past and present behaviour of the visa holder towards the department.
The applicant appears to have co-operated with the Department and there is no adverse evidence against the applicant in this regard. I give this some weight towards not cancelling the visa.
Whether there would be any consequential cancellations under s 140
There is no evidence suggesting that if the applicant’s visa is cancelled, any other persons visa will be cancelled under s 140 of the Act.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.
The Tribunal recognises that, if the visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. However, he may be eligible for a bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalise his affairs in Australia before departing.
If his visa is cancelled, the Tribunal also recognises that he will be subject to s 48 of the Act which means he will have limited options when applying for further visas, including the possibility that he may not be granted a temporary visa for 3 years from the date of the cancellation.
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 Triaca
MemberATTACHMENT
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.
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