Nimanna Gamage (Migration)

[2020] AATA 1734

Nimanna Gamage (Migration) [2020] AATA 1734 (6 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bimsara Madushanka Nimanna Gamage

CASE NUMBER:  1931715

HOME AFFAIRS REFERENCE(S):          BCC2019/3261964

MEMBER:Peter Booth

DATE:6 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 06 March 2020 at 8:44am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered higher level course – applicant changed to vocational courses – non-commencement of studies – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 36, 116, 360
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 November 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).

2. The delegate cancelled the visa on the basis that the applicant had breached condition 8202. 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. By letter dated 14 February 2020 the Tribunal wrote to the applicant and invited him to attend the hearing of his application for review. The letter was sent by email on 14 February 2020 to the email address of the applicant’s migration agent. The letter informed the applicant that his application for review would be heard on 2 March 2020 at 9:30 AM. He was informed he should attend at the Tribunal’s office at Level 4, 15 William Street, Melbourne in Victoria. The applicant did not attend on the appointed day and time.

4. Pursuant to s.36(2B) of the Act where the applicant is invited pursuant to s.360 to appear before the Tribunal and does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. In the circumstances the Tribunal will make a decision on the applicant’s application for review without taking any further action to allow or enable the applicant to appear before it.

5. 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

6. 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?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant must maintain enrolment in a registered course that, once completed will provide a qualification that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b). In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a registered course at the same level or higher for which he was granted his student visa.

8. The delegate’s decision dated 5 November 2019 records the reasons for cancellation of the applicant’s student visa. The applicant was granted a TU-500 higher education sector student visa on 26 September 2016 on the basis that he was enrolled in a bachelor of business course due to commence on 30 July 2018. Once completed this course would provide a level 7 qualification from the Australian Qualifications Framework (AQF). On 17 March 2017 the applicant’s enrolment in the bachelor of business course was cancelled by the education provider because the applicant had not commenced his studies. On 31 March 2017 the applicant obtained enrolment in a bachelor of tourism and hospitality management course which he was due to commence on 16 July 2018. However this enrolment was also cancelled for non-commencement of studies on 7 September 2018. The delegate found that the applicant had not enrolled in a further bachelor’s degree course. Since the applicant was granted the student visa he has completed a certificate IV in business course on 1 October 2017 and a diploma of business course on 18 August 2019. On 4 September 2019 he obtained enrolment in a certificate III in light vehicle mechanical technology, a certificate IV in automotive mechanical diagnosis and a diploma of automotive technology. None of these registered courses have an AQF level higher than level 5. Accordingly on the evidence before the Tribunal the applicant was not enrolled in a full-time registered course at the same level as or higher than the registered course in relation to which his visa was granted during the period 17 March 2017 to 31 March 2017. Thereafter from 7 September 2018 the applicant was not enrolled in a full-time registered course at the same level as or higher than the registered course in relation to which his visa was granted. There is no evidence that the applicant has been enrolled in a level 7 AQF course since 7 September 2018. Accordingly the applicant has not complied with condition 8202(2)(b) since at least 7 September 2018.

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

   Consideration of the discretion to cancel the visa

10. 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 Procedural Instruction ‘General visa cancellation powers’.

11. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover the following matters.

    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

12. The applicant arrived in Australia as the holder of a Subclass 500 higher education student visa intending to study a bachelor of business course. There is no evidence before the Tribunal as to whether he has a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

13. The applicant chose not to appear at the hearing of his application for review. Accordingly the only evidence upon which the Tribunal can rely is the delegate’s decision dated 5 November 2019. The delegate found that the applicant was not enrolled in a AQF level 7 course during the period 17 March 2017 to 31 March 2017 and again from 7 September 2018. The Tribunal finds that there is a ground for cancellation of the applicant’s student visa pursuant to s.116(1)(b) as the applicant had not complied with condition 8202 from at least 7 September 2018.

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

14. The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

15. The applicant chose not to appear at the hearing of his application for review. The applicant has provided no submissions or evidence to the Tribunal in support of his application for review. Accordingly, the Tribunal gives this significant weight in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

16. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Whether there would be consequential cancellations under s.140

17. The Tribunal was provided with no evidence on this point and gives it little weight.

    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 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

18. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

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

19. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

20. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Any other relevant matters

21. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    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.