Perera (Migration)

[2019] AATA 4105

Perera (Migration) [2019] AATA 4105 (2 September 2019)

DECISION RECORD

DIVISION:        Migration & Refugee Division

APPLICANT:     Nayana Dharshana Nirmal Perera

CASE NUMBER:         1920913

HOME AFFAIRS REFERENCE(S):     BCC2019/1472599

MEMBER:        T. Quinn

DATE:    2 September 2019

PLACE OF DECISION:           Melbourne

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

Statement made on 02 September 2019 at 10:52am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – failure to attend scheduled hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – elected to prioritise working over study obligations – disappointment to visa holder and family – significant period of non-enrolment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116

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

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 17 July 2019 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the visa’) under section 116(1)(b) of the Migration Act 1958 (‘the Act’).

2.        The applicant was granted the visa on 22 November 2016.  The applicant is from Sri Lanka and came to Australia with the intention to study a package of courses leading to a Bachelor of Business (Marketing Management) view to using those qualifications to pursue a career in management, sales and marketing to start his own marketing or advertising company in Sri Lanka.

3.        On 26 June 2019, the delegate sent the applicant a Notice of Intention to Consider Cancellation (‘NOICC’) on the basis that he had not been enrolled in a registered course of study since 16 May 2018.

4.        On 12 July 2019, the applicant responded to the NOICC.

5. On 17 July 2019, the delegate cancelled the visa on the basis that the applicant had failed to comply with a condition of the visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not complied with a condition of their visa. In this case, the applicant breached subclause 2(a) of condition 8202 of his visa in that he failed to maintain enrolment in a full time registered course. The applicant did not comply with this condition of his visa from 16 May 2018 to 17 July 2019. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

6. On 30 July 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.

7.        The applicant was assisted in relation to the review by their registered migration agent.

8.        The applicant’s matter was listed for hearing before the Tribunal at 10am on 2 September 2019 whereby the applicant was given an opportunity to give evidence and present arguments.  The applicant did not respond to his hearing invitation.  The applicant’s migration agent contacted the Tribunal on 22 August 2019 to indicate they had not been able to contact or obtain instructions from the applicant.

9.        The applicant failed to appear before the Tribunal on 2 September 2019.  The Tribunal waited until 1030 and determined to decide this matter on the basis of the material before it. 

10. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

11.       The Tribunal has had regard to all the information before it, including the Department File and all information provided by the applicant to the Tribunal.  The Tribunal notes that the applicant has not provided it with any material beyond which was before the Department on 17 July 2019.

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

STATUTORY FRAMEWORK

13. The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.

14. Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

CONSIDERATION OF CLAIMS AND EVIDENCE

Does the ground for cancellation exist?

15. A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:

a.           be enrolled in a registered course, or in limited cases,  a full time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (2);

b.           has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and

c.           has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

16.       In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full time registered course of study or training.

17.       The applicant was enrolled in a Bachelor of Business (Marketing Management).   This enrolment ceased on 16 May 2018 and the applicant has not been enrolled in a full time registered course of study since that date. 

18.       In his response to the NOICC, the applicant acknowledged and accepted that there are grounds for cancellation.

19. For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

Consideration of discretion to cancel the visa

20. 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, whether the visa holder has a compelling need to travel to or remain in Australia

21.       Prior to arriving in Australia, the applicant completed secondary school in 2008, followed by a Diploma in Multimedia in Sri Lanka.  He then worked in the marketing and sales field in a telemarketing company.

22.       The applicant was granted the visa on 22 November 2016.  The applicant came to Australia with the intention to study a package of courses leading to a Bachelor of Business (Marketing Management) view to using those qualifications to pursue a career in management, sales and marketing to start his own marketing or advertising company in Sri Lanka.

23.       The applicant’s father’s health deteriorated in 2009 and he suffered a heart attack in 2011 and passed away.  This impacted the applicant’s family financially.  The applicant’s mother took on debt in order for the applicant to commence studying in Australia with a view to improving the applicant’s employment prospects upon his return to Sri Lanka.

24.       The applicant has stated in his response to the NOICC that he felt a pressing need to assist his mother financially and pay off her debts, he stated he could not afford to pay for his tuition fees and indicated he was focussed on assisting his mother financially.  He also stated that he married in late 2018 and his wife is working and caring for his mother in Sri Lanka.

25.       The applicant stated in his response to the NOICC that if his visa is cancelled, he and his and his wife’s family will be humiliated and his marriage may end.  He also states that it will impact his employment prospects and financial situation upon return to Sri Lanka.

26.       The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this constitutes a compelling need to remain in Australia.  Further, the Tribunal notes that the applicant’s family’s financial difficulties started well before his arrival in Australia and that this should have been a factor he considered when making the decision to study in Australia and the costs associated with that decision. 

27.       The Tribunal notes that the applicant has elected to prioritise working in Australia over his study obligations, while residing onshore on the basis of a student visa and failing to undertake any study whatsoever.  Whilst the Tribunal appreciates the applicant’s reasons for this decision, it raises concerns about the applicant’s true intentions in residing onshore.  The Tribunal considers the applicant does not have any compelling need to remain in Australia in the circumstances.  The Tribunal gives weight in favour of cancelling the applicant’s visa in this regard.

Circumstances in which ground of cancellation arose

28.       The applicant’s reasons for failing to pay his tuition fees and for failing to remain enrolled are outlined above. The Tribunal accepts that the applicant’s father’s health issues and death affecting his family financially.  The applicant has also supplied information about financial difficulties his brother and sister were facing and his sense of responsibility towards his mother as the youngest child.   However, these issues pre-dated his arrival in Australia and ought to have been taken into consideration before obtaining a visa which had certain conditions that must be met.

29.       The Tribunal empathises with the applicant and his family in relation to his father’s health and passing and the related financial difficulties and understands that these problems must have been difficult.  However, the option to return to Sri Lanka to avoid breaching his visa conditions was open to the applicant at all times.

30.       The Tribunal acknowledges the applicant’s mother’s and sibling’s financial positions were out of the applicant’s control, but also considers that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same and again, the financial issues were evident prior to his arrival in Australia and his decision to move here to study was certainly within his control.  It is the responsibility of a visa holder to ensure they are complying with the conditions of their visa.  The Tribunal gives equal weight in favour and against cancelling the applicant’s visa in this regard

Extent of compliance with visa conditions

31.       The Tribunal notes the applicant has otherwise complied with student visa conditions.  However, the applicant’s breach of the condition of the visa is extensive, being approximately fourteen months.  The Tribunal considers the fourteen month breach a significant breach and gives weight in favour of cancelling the applicant’s visa in this regard.

The degree of hardship that may be caused to the visa holder and any family members

32.       The applicant stated in his response to the NOICC that if his visa is cancelled, he and his and his wife’s family will be humiliated and his marriage may end.  He also states that, without an Australian degree, it will impact his employment prospects and financial situation upon return to Sri Lanka.

33.       The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that money is invested in a person in order to set them up in a country to live independently in order to study.

34.       The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.

35.       The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition.  Whilst appreciating the hardship the applicant and his and his wife’s family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

The visa holder’s past and present behaviour towards the Department

36.       There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department.  The Tribunal gives some weight against cancelling the applicant’s visa in this regard.

Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act

37.       This is not relevant to the applicant.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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

38.       If the visa is cancelled, this will result in the following:

a. the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

b.           the applicant will have limited options to apply for further visas in Australia;

c.           the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed.  The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.

The Tribunal gives little weight to this consideration in favour of the applicant because:

           these are the intended consequences of the legislation when a visa is cancelled under these grounds;

           it reflects the seriousness with which the Department takes this type of cancellation ground;

           the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.

Australia’s international obligations

39.       There is nothing before the Tribunal to suggest that the cancellation of the visa would breach any international obligations.  The Tribunal places no weight on this in favour of or against the applicant.

Any other relevant matters

40.       Nil.

CONCLUSION

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

decision

42.       The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

T. Quinn
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.