PORAWAKA ARACHCHIGE (Migration)

[2019] AATA 6710

PORAWAKA ARACHCHIGE (Migration) [2019] AATA 6710 (1 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss SARAJI SHASHIVADANA RATHNAPRIYA PORAWAKA ARACHCHIGE

CASE NUMBER:  1719396

HOME AFFAIRS REFERENCE(S):         BCC2017/1995255

MEMBER:Dominic Triaca

DATE:1 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 October 2019 at 3:06pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of travel and stay – compelling need – change in study path – responsibility to understand course requirements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Boettcher v Driscoll (2014) SASC 86
de Angelis v de Angelis [2003] VSC 432
Dimic v Djekovic (2014) NSWSC 1502
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs 143 FCR 204
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
R (on the application of M) v Slough Borough Council [2008] UKHL 52

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 August 2017 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 delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study between 23 March 2017 and 7 August 2017. 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. The applicant appeared before the Tribunal via video link from Sydney on 21 August 2019 to give evidence and present arguments. 

4. 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

5. 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?

6. Condition 8202 requires the visa holder to adhere to certain course enrolment, attendance and academic progress requirements. Relevantly, it requires the applicant to have continuing enrolment in a full time registered course.

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

8. The delegate found that the applicant was not enrolled in a registered course of study between 23 March 2017 and 7 August 2017.

9. In her oral evidence before the Tribunal, the applicant confirmed that she was not enrolled in a registered course of study during the relevant period and accordingly the Tribunal finds that the delegate’s decision in this regard was correct and finds the applicant was not enrolled in a registered course of study for approximately 4 months.

10. 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

11. 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’

12. The applicant’s evidence before the Tribunal is summarised as follows:

    (a)She is a 23 year old citizen of Sri Lanka.

    (b)She first arrived in Australia in 2014 to study a Diploma of Music at Ultimo in Sydney.

    (c)During her time at Ultimo, the college advised her that it would no longer be offering the Certificate III in music she had commenced. She was disappointed in the manner in which the College ceased offering the Certificate III in Music and changed courses;

    (d)She enrolled in a Diploma of Fashion and Textile Merchandising course at Karl Van Busse Institute in Sydney in August 2016.

    (e)She commenced studying at that time and completed one semester. However, in about February 2017 she realised that a compulsory component of the course was to travel overseas to Europe and she did not travel on account of her already being on a student visa. It does not appear that she sought any formal advice on the question of whether she was entitled to travel on her student visa.

    (f)There is some confusion as to whether her enrolment was cancelled due to the non-payment of fees of her non-attendance. In any event, she stopped attending classes in March 2017 and her CoE was cancelled by the College around this time.

    (g)The Karl Van Brusse Institute subsequently shut down but this appears to have occurred after her CoE was cancelled.

    (h)She says spent the period between March and September 2017 looking for an education provider.

    (i)In September 2017 she enrolled in a course a Diploma of Beauty Therapy at Ella Bache.

    (j)She says that the enrolment at Ella Bache was not in response to her receiving the Notice of Intention to Consider Cancellation (NOICC) of a visa on 21 August 2017;

    (k)She graduated from Ella Bache with a Diploma of Beauty Therapy on 11 April 2019.

    (l)She appears to have flourished at Ella Bache and was offered a position with the brand the end of 2018. She completed unpaid work experience with the brand and was awarded 2 awards at her graduation ceremony.

    (m)Since graduation she has been working for the company as a beauty therapist at David Jones in Bondi, Sydney.

    (n)She hopes to study further and obtain a Bachelor of Nursing to enable her to offer cosmetic injectables however she is not enrolled to do any further study. She says she would like to commence further study in February 2020.

    (o)She hopes to obtain a Working Graduate Visa (Subclass 485) for a further 3 years.

    (p)At the hearing, the applicant provided further documentation including a copy of a Residential Tenancy Agreement, Academic Transcript, Certificate from Ella Bache including awards received on 11 April 2019; Emails from Karl Von Busse; Letter of engagement from Ella Bache dated 8 November 2018 and a letter addressed to the Tribunal dated 20 August 2019. The Tribunal has read and had regard to these documents.

    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

13. The term “compelling need” is not defined in the PAM3. I take it to have its ordinary meaning, having regard to both the context and purpose of the PAM3 and s 116 of the Act: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (“ Project Blue Sky ”) per McHugh, Gummow, Kirby and Hayne JJ at [69]. There is nothing in s 116 or the PAM3 , or elsewhere in the Act, to indicate that Parliament intended the phrase “compelling need” to be given anything other than its ordinary and natural meaning.

14. 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 143 FCR 204 (“Paduano”). Her Honour set out the jurisprudence in relation to the words “compel” and “compelling” and the various dictionary meanings and stated, relevantly:

15. “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.

16. 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’.”

17. “Need” was considered in Dimic v Djekovic (2014) NSWSC 1502, per Hallen J, at [111] as follows: "Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from " want ". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]:

18. "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely ' want ', but it falls far short of 'cannot survive without'."

19. ‘Need’ and ‘ want ’ are not interchangeable. The difference between ‘need ’ and ‘ want ’ is significant. See Boettcher v Driscoll (2014) SASC 86 at [41] per David J.

20. Having regard to these authorities, I take the phrase compelling need to have the ordinary meaning of the words, compelling, demanding attention or demanding interest or being forceful,  and need requiring something more than a mere want, but falling far short of requiring the applicant to demonstrate necessity in the sense that he cannot survive without it.

21. The Tribunal accepts that the applicant came to Australia with a purpose of studying and this is reflected in her enrolment and early course progress at Ultimo studying Music.

22. Ministerial Direction 69 contemplates that a reasonable change in career path should be accommodated for students on a student visa. The applicant has changed direction and studied fashion and then Beauty Therapy. Changing courses is not adverse to the application.

23. There are two issues that weigh against the application.

24. First, the applicant provided no reasonable explanation in relation to the four months she spent in Australia on a student visa during 2017 in which she was not enrolled in a registered course of study and was not studying.

25. Her evidence was that she stopped studying at Karl Von Busse in circumstances in which she did not realise that a compulsory requirement of the course required her to travel overseas for a period. Ultimately it is the responsibility of the student to understand the requirements of the course and ensure that they will be able to meet those requirements before enrolling. It is also noteworthy that the applicant does not appear to have sought any formal advice on whether or not she was able to travel overseas at the time under the terms of her visa. However, accepting for a moment that her issue with the College was sufficient to warrant a cessation of her studies, there is no explanation as to why it took a further 4 months for her to enrol in further study. The Tribunal considers that her purpose ceased to be studying during that period of time. Further, it weighs against the application that she did not enrol in further study until after she received the NOICC from the Department.

26. Secondly, the applicant appears to have acquitted herself well and successfully completed her studies at Ella Bache. It is to her credit that she graduated and received awards in April 2019 and has been employed by the Brand. However, the reality is that upon graduating, her purpose has been working at Ella Bache and not studying.

27. The applicant states that she hopes to enrol in further to study to enable her to become a registered nurse and offer cosmetic injections and hopes to commence studying in February 2020. This would represent a period of approximately 10 months that she was in Australia on a student visa without undertaking any form of study and the Tribunal does not consider that she has demonstrated a compelling need to travel or stay in Australia.

    Circumstances in which the cancellation arose.

28. The matters set out in paragraph 24 and 25 above weigh against the application.

    The extent of compliance with visa conditions.

29. As stated above, the applicant was in breach of his student visa conditions for approximately 4 months. Whilst this is not a substantial period of time, it is not minor or inadvertent and the Tribunal considers that the applicant ought to have taken steps to remedy her non-compliance well before receiving the NOICC. The non-compliance with condition 8202(2) for this period of time weights towards the cancelling of the visa unless the Tribunal accepts his reasons for non-enrolment.

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

30. The applicant is concerned that she may lose her employment if the decision is affirmed. This may be the case, however the Tribunal considers this to be the intended consequences of the legislation.

31. She also points to the fact she has signed a lease agreement to rent an apartment in Sydney. The Tribunal accepts that the cancellation of her visa may affect her housing arrangements, however it does not consider that the applicant has established that this constitutes a significant level of hardship.

32. The Tribunal considers that the above matters give some weight towards not cancelling the visa.

    Past and present behaviour of the visa holder towards the department.

33. There is no evidence that the applicant has been uncooperative in her dealings with the Department and the Tribunal gives this some weight in her favour.

    Whether there would be any consequential cancellations under s 140

34. 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.

35. 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, she 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 her affairs in Australia before departing.

36. If her 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.

37. The Tribunal considers these are the intended consequences of the legislation.

    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.

38. 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.

39. 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

40. The applicant requested that the Tribunal grant her a Working Graduate Visa (485) in her letter to the Tribunal dated 20 August 2019. The Tribunal considers that this is indicative of the fact that she is no longer in Australia for the purpose of studying and instead, her purpose is to work as a Beauty Therapist for Ella Bache. This weighs against the application.

41. The Tribunal has considered the applicant’s evidence at the hearing, the documents provided and her submissions at the hearing and, considering the circumstances as a whole, the Tribunal concludes the visa should be cancelled.

    DECISION

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

    D. Triaca
    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.