Ranthilakage (Migration)

Ranthilakage (Migration) [2023] AATA 1834 (20 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Nesala Sulochana Bhathiya Ranthilaka Ranthilakage
REPRESENTATIVE:  Mr Hiten Arvindbhai Mistry (MARN: 1802506)
CASE NUMBER:  2211333
HOME AFFAIRS REFERENCE(S):          BCC2022/1849022
MEMBER:Christine Kannis
DATE:20 May 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 20 May 2023 at 10:14am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – failure to comply with condition of visa – not enrolled in full-time registered course for extended period – discretion to cancel visa – ground for cancellation conceded – study difficulty and changes of course, COVID restrictions, surgery, motor vehicle accident and restrictions on financial support from family – physical and mental health and treatment – father’s physical health – return to study in new subject area after receiving department’s notice of intention – support and statements from sister and friend – extenuating or compassionate circumstances – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
CASE
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 4 August 2022 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 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal on 9 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, Ms Ranthilakage Thamara Damayanthi Sulochana Ranthilaka Wijayathungain.
The applicant was represented in relation to the review. The representative did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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 (Cth) (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?
On 2 December 2020, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full-time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the course in relation to which the visa was granted: 8202(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
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]
[1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).
[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.
The information from PRISMS shows that the applicant was not enrolled in a registered course from 21 January 2021 to 4 July 2022.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 21 January 2021 to 4 July 2022 and the Tribunal finds that he breached condition8202(2)(a) of his visa.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.
Consideration of the discretion to cancel the visa
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’, as set out below.
On 21 June 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 21 January 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa.
Response to NOICC
On 28 June 2022 and 6 July 2022, the applicant responded to the NOICC and provided the following information:
·He acknowledges he did not continue to be enrolled in study for a period of time.
·He started his studies in Australia in February 2014. He completed a Certificate IV in Tertiary Preparation program and Diploma in Health Science.
·He started a bachelor’s degree in nursing, but his academic performance was not satisfactory, and he received a termination letter from the university.
·His goal was to complete his studies in Health Science and build his career in that field. Therefore, he decided to move to Melbourne to become an enrolled nurse in early 2020. It was the beginning of the pandemic and he was studying a Certificate III in Pathology online with Southern Cross Education Institute in Melbourne. Due to border closures and quarantine requirements, he had trouble moving there to continue his studies when practical assessments were required and couldn’t continue his studies. He looked for a similar course to study in Perth but could not find a course with pathology foundation.
·This was followed by an urgent surgery and a motor vehicle accident. The physical and psychological impact was too much for him and because of the sanctions imposed by Sri Lanka on sending money overseas, his parents were unable to support him financially through this time to enable him to resume his studies.
At the time of responding to the NOICC, the applicant provided:
·St John of God Hospital Medical Certificate dated 29 December 2021 certifying that the applicant is unfit for work for 3 weeks due to post-operative surgical recovery
·Insurance Commission of Western Australia (ICWA) Online Crash Report from dated 3 March 2022 in which the date of the crash was indicated to be 2 March 2022
·Letter dated 14 March 2022 from ICWA advising that for a claim to be accepted negligence must be established against the driver or owner of a Western Australian licensed motor vehicle
·Letter dated 9 March 2022 from Dr Lih Jun Matthew Wong which stated that following the motor vehicle accident, the applicant had left knee and left ankle pain. Dr Wong said the applicant had also developed pain on breathing. He said the applicant had been given pain relief for his knee and chest pain. Dr Wong said the applicant was receiving physiotherapy to improve his function in his knee and ankle. He said the applicant had been reporting symptoms of PTSD following the accident and had been referred to a psychologist. Dr Wong said the applicant also reported significant worsening of pre-existing heart palpitations following the accident for which he is to receive treatment.
·CoEs for Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma of Hospitality Management, all created on 5 July 2022.
·Genuine Statement of Purpose dated 5 July 2022 in which the applicant provided the following additional relevant information:
oHe is a genuine temporary entrant, and his intention is to study temporarily in Australia to further his education and skills.
oHe started a Diploma of Science (Computing/IT). After three trimesters, he realized his potential and passion towards nursing and changed his course to Diploma of Science (Health Studies) and completed it in February 2018.
oHe continued his studies in Bachelor of Science in Nursing in February 2018 and went well in the first year, but he struggled and started to fail some units in the second year and was excluded from the college in February 2020.
oThis was followed by an urgent surgery and a motor vehicle accident. The physical and psychological challenges were too strong and he was at the edge of his rope where his family couldn’t help financially and due to the economic sanctions imposed by Sri Lanka on sending money overseas, his parents were unable to support him financially to resume his studies.
oHe was then in a critical state of figuring out his career path supporting himself financially. He started working as a waiter/kitchen assistant on full time basis to support his studies for the semester starting from July. Working in hospitality made him realize he can build a new career path if he can obtain academic qualifications. He has found an enthusiasm and passion towards the culinary industry with the confidence of making this a long-time career pathway.
oHis initial passion was for nursing but he now understands it was not meant for him and rather than struggling more, the decision was made after a discussion with his family. His sister and brother-in-law are happy to support him financially for his new courses. He will still be working in the same sector while studying so that the required experience and the financial capability will be covered at the same time.
oHe has spent 8 years in Australia. Even though he holds a diploma and a certificate, he hasn’t yet created a career path where he has succeeded.
oHe is the youngest in his family and his retired parents solely depend on his establishment. He is not ready to return to Sri Lanka without a proper career pathway.
oHe no longer intends to move from Western Australia to another state for education purposes because it is best to be around his family where he can get emotional and financial support.
Evidence provided prior to the hearing
Prior to the hearing, the applicant provided documents which included but were not limited to statutory declarations and a written submission dated 30 April 2023 from his representative.
A statutory declaration dated 30 April 2023, made by the applicant contained information not materially different from the information provided in his response to the NOICC and his General Purpose Statement and the following additional information:
·       Due to COVID-19 interstate travel requirements and increase in COVID-19 cases in Melbourne in 2021, he was afraid of travelling there, finding accommodation and a source of income during such an uncertain time. Therefore, he decided to wait until the situation improved. This is when he breached the visa condition by not registering with a full time course. He acknowledges the decisions he made could have been better and were not made deliberately but with a poor mental health state due to numerous personal problems. Due to his mental stress, his thinking ability also became poor and he could not make any decision on how to re-enrol. He was not aware that he urgently needed medical attention for his poor mental health state during this time.
·       He is close to his father but he no longer had his help when his father suffered a stroke in 2014 shortly after he arrived to Australia. His father’s doctor advised the family not to stress him to prevent another stroke.
·       His sister and brother-in-law have supported his stay in Australia and he lived with them until 2020. They declared bankruptcy and were going through some difficulties themselves as a family. He did not want to be a burden to them anymore and moved to his current address.
·       Having not much financial support and no one to talk about his struggles caused his mental health to go from bad to worse. He disconnected from family and friends and most days he spent alone, feeling hopeless and struggled to attend even the simplest daily tasks. He was hopeless, hungry for days, financially not fit to look after his life and was ashamed of being a failure.
·       He was also suffering from a growing phimosis condition. He was unable to discuss it with his sister or a friend due to the nature of it. He underwent surgery in December 2021. Due to the nature of this condition, it had been psychologically affecting him and had impact on his relationships, self-esteem and months of physical pain prior to and after the surgery. The surgery was not fully covered by his health cover policy. He opened up to one of his closest friends a few days before the surgery to help him with the recovery. His family got to know about his situation through this friend.
·       Following recovery from surgery he was in a car accident with an interstate vehicle which left him with physical injuries and had a psychological impact. He had to cover his medical expenses as ICWA would only cover medical expenses if the other party is also insured in Western Australia. He had to spend more of his savings and he was devasted with the realisation it is becoming impossible to restart his studies.
·       Finding another institute in Perth with a similar course structure was difficult due to unavailability and financial difficulty as he had had already made payments to the institute in Melbourne and struggled with employment during COVID-19. He realised he needed help as he couldn’t focus on his day to day chores. These series of events kept him mentally falling apart and made him hopeless of any chance of restarting his studies in Australia.
·       In 2022 he reached out to his sister and she took him to her family doctor in Perth Medical Centre. He was at the end of assessment bar at the time of diagnosis and was advised to start medication and placed on a treatment plan. His sister has been supporting him to follow the treatment plan and medication and she invited their parents to Australia as he had not seen them in several years. All these changes have impacted positively on his mental and his studies. He wishes he knew of his anxiety disorder in 2020 – 2022 because the choices he made would be different.
·       Since moving to Australia his only purpose was to finish to his studies and return   to Sri Lanka and look after his parents. The Sri Lankan tradition is that the youngest of the family has to take care of their parents. It would be difficult to return to Sri Lanka without a sufficient level of qualification because you need a good level of education to find a job. He is a failure at this stage in most aspects of his life, basically ruining the past 9 years. As such he would carry no value to his family and he wants to fix himself academically and mentally before returning to Sri Lanka with the support of his sister.
·       Before his visa was cancelled, he was employed in a restaurant and he decided to pursue a career in the hospitality industry and enrolled in Certificates III and IV Commercial Cookery leading to Diploma of Hospitality.
·       He admits his mistake of not enrolling in a course due to unavoidable circumstances and was not deliberate. He is aware of and will abide by his Subclass 500 visa conditions.
A statutory declaration dated 30 April 2023 made by the applicant’s sister, Ms Ranthilakage Thamara Damayanthi Sulochana Ranthilaka Wijayathungain, which provided the following relevant information:
·She arrived in Australia in 2004 as an international student. Her father supported her studies in Australia and her sister’s studies in New Zealand.
·She sponsored the applicant for his studies in Australia as her father was reaching retirement and had done his fair share for her and her sister.
·The applicant’s only intention in coming to Australia was to complete his studies and return to Sri Lanka to look after their parents and the family business..
·It took a fair bit of rough drive for the applicant to realize his capabilities, passion and ended up choosing the correct study path for himself. The first-time things started to go down for him was when their father suffered from a severe stroke shortly after the applicant arrived in Australia. Their mother had to downgrade the family business and focus on their father’s wellbeing. Their family was instructed to avoid situations that could boost a second stroke, which is considered as fatal in his situation.
·She and her husband had to declare bankruptcy in 2018 and a little later the applicant decided to move out of her home, He started disconnecting from her family as he was ashamed of not being able to succeed with his studies. Her family lost connection with him due to financial hardship and the situations involved.
·The applicant had undiagnosed depression which made him disconnected. There were occasions when the family were worried as he wasn’t talking to any of them for days.
·Their father’s ongoing health situation, her family’s financial hardship, the applicant’s health conditions, his car accident and the sanctions imposed by Sri Lanka greatly affected him.
·In early 2022, the applicant reached out to her. He was struggling with financial difficulties as he had already paid for the course in Melbourne and was left with no money to pay another institute. He was not ready to return to Sri Lanka insisting that he couldn’t face their parents as a failure. He wanted a fresh start with his studies. By then she and her husband were in a financial situation to help him with studies by sponsoring him again. He chose Certificate III in Commercial Cookery leading to Diploma of Hospitality .
·It took a few months to make the applicant understand that he needed medical help and she took him to her family general practitioner at Perth Medical Centre. He was diagnosed with depression/ high anxiety and was at the end of the measurement bar. He was instructed to start medication. The applicant’s inability to help himself financially while the family was going through rough times and not being able to cope with past studies brought him to this stage. She noticed his improved interactions with family after starting medication and his enjoyment over recent studies. The applicant chose this course not with an intention of avoiding visa cancellation but with a genuine hope of completing a course before he returns to Sri Lanka. He desperately wanted to find a course that fits his intellectual and financial capacity.
·Australia has been the applicant’s home for the last 9 years. Without proper education, life in Sri Lanka will be very hard and there are not many options for non-school leaver to start career. If the applicant is to leave Australia she has grave concerns about his life and wellbeing and fears for his long term mental health due to lack of somebody to support him for at least a few more months. He is not ready to leave as a failed person. He recently mentioned he would never see the value of his life if he had to return to Sri Lanka in this status. She had to take him back to the doctor in March 2023 following this conversation as she realised he was stressing about his visa status while missing his medication for two weeks.
·The applicant has been a part of her children’s lives for the 9 years and if something bad happens to his life, this would impact on their mental wellbeing and she would feel guilty about not being able to help him.
·She has brought her parents to Australia for a few months to support the applicant mentally.

A statutory declaration dated 30 April 2023 made by the applicant’s friend, Rajakaruna Herath Mudiyanselage Prabhath Indika Rajakarunain, in which the following information was provided:
·He is a very close friend of the applicant. He has witnessed the applicant’s struggle with his studies along with his decline of being himself during the period of 2019-2022.
·He has witnessed the applicant disconnecting from his family and becoming vulnerable during COVID-19 due to emotional stress. He has witnessed the applicant isolating in his room for days where his parents and sister were worried and contacted him to find out about the applicant’s wellbeing.
·He has helped the applicant with his recovery after his surgery. He had to assist the applicant driving around for his consultations as he was scared to drive for some time after the car accident. He has witnessed the applicant losing his true self after these continuous incidents and not being able to attend himself to his routine tasks.
·He tried to get the applicant to have professional support during the time but he refused to so. He encouraged him to reach out to his family during 2021-2022.
·He has spoken to the applicant’s sister about his concerns of the applicant’s mental health.
The representative’s written submission included information not materially different from the information provided by the applicant in his response to the NOICC, his General Purpose Statement and in his statutory declaration. The written submission also provided the following information:
·In March 2022, the applicant was in a motor vehicle accident and which caused physical injuries and a psychological impact. He could not proceed with his Psychologist and Cardiologist referrals due to the cost and he was spending his savings to recover from the physical injuries.
·In August 2022, the applicant was diagnosed with prolonged severe anxiety and depression. He was advised to take medication immediately and placed on a treatment plan with the support of his sister.
·In March 2023, the applicant was in an unstable condition and was taken into St. John’s urgent care by his sister and placed back on medication for his mental health.
·From August 2022, the applicant has been enrolled in his newly found passion in Commercial cookery and has shown significant progress in academic results with the help of the medication, a treatment plan and the support his sister.
·The applicant was not enrolled in a course due to the following reasons:
oHe was not able to continue the course online as the remaining units needed practical classes at Melbourne campus. He was not able to travel interstate due to COVID-19 travel restrictions plus increasing COVID cases in Melbourne.
oHe was under tremendous stress and depression due to the economic turmoil in Sri Lanka, the impact of COVID-19 on his family and his family’s financial hardship.
oHe has been suffering with phimosis, a condition which developed over a period of 2 years to the point where he had to undergo urgent surgery. The nature of the condition affected his relationships and self-esteem, adding more stress to his depression and anxiety.
oHe had a car accident suffering both physical injuries and a psychological impact and was not covered for expenses by ICWA which made him spend out of pocket savings.
Documents evidencing the applicant’s medical conditions which included the following:
·Letter from Queen’s Park Medical Centre dated 10 December 2021 referring to the applicant’s phimosis
·Letter dated 15 December 2021 from Dr Ivan Aw Urologist and Operation Report dated 29 December 2021
·Letter dated 14 February 2022 from Dr Ivan Aw Urologist stating that the applicant’s circumcision wounds had healed and no further appointments had been made
·Referral letters from Queen’s Park Medical Centre dated 3 and 9 March 2022 referring to the applicant’s tachycardia and PTSD arising from a motor vehicle accident
·Letter dated 25 April 2023 from St John of God General Practice referring to the applicant’s anxiety, depression and panic attacks.
·Letter dated 27 April 2023 from Dr Bede Rogers Perth Medical Centre which stated that the applicant had been a patient since August 2022 and referred to him having anxiety.
Documents from the Australian Financial Security Authority evidencing the applicant’s sister’s bankruptcy and a Diagnosis card dated June 2014 evidencing the applicant’s father’s medical condition were also provided.
Evidence at hearing
The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put the applicant’s PRISMS enrolment record to him. The Tribunal explained to the applicant that this information was relevant because it indicates that from 21 January 2021 to 4 July 2022, he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether the applicant breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal also explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering his purpose for remaining in Australia.
The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on the information if needed. The applicant told the Tribunal that the information in PRISMS was a correct reflection of his enrolments and study in Australia.
The applicant told the Tribunal that when he was unable to move to Melbourne to continue his study in the Certificate III in Pathology course, he was struggling with mental health and personal issues. He said he is a different person now because he has received treatment however in 2021 he was struggling with financial pressure and poor physical and mental health. He underwent surgery in December 2021 for a medical condition which had been impacting his physical and mental wellbeing for at least 2 years. He said following this he was involved in a motor vehicle accident which resulted in additional physical and mental health issues and placed him under additional financial stress.
The applicant told the Tribunal that during the 17 months from cancellation of his enrolment on 21 January 2021 until he received the NOICC, he was struggling with these financial and health issues.
The Tribunal noted that it is a requirement for the grant of a student visa that visa holders can financially support themselves for travel, living costs and tuition fees during their stay in Australia. In response, the applicant said when he came to Australia his parents provided money and his sister provided accommodation. He said after his father’s stroke in 2014 his parents’ business was downgraded and their financial support was reduced. When Sri Lanka imposed sanctions it was non-existent.
The Tribunal put to the applicant that he would have known in January 2021 that he was no longer enrolled in a course and was not abiding by the conditions of his visa. He conceded that he was aware of this and said he did not realise the gravity of his non-compliance. He said he was overwhelmed in 2021 and 2022 and although he was experiencing panic attacks at the time, he did not realise what they were and did not know he was suffering from severe depression. He said his mental health was so poor that he arranged to donate his body to the University of Western Australia for research purposes if he passed away. He said he did not want to be a burden to family and friends. He said he was ashamed to return to Sri Lanka without a good qualification and he also feared his failure would adversely impact on his father’s health. The Tribunal asked the applicant whether he contacted the Department when his enrolment circumstances changed. He said he did not contact the Department and now knows he should have done so. His repeated evidence was that he was overwhelmed and struggling with many issues at that time. He said the period of 17 months did not feel like an extended period when he was going through these difficulties.
The Tribunal put to the applicant that he was able to enrol once he received the NOICC. He said it was then that he realised the gravity of his non-compliance and he sought his sister’s help and she paid for the enrolment.
The applicant told the Tribunal that he came to Australia to obtain a good qualification. He said as the youngest child in the family it is his responsibility to financially support his parents. He said this together with fixing his mental health with his sister’s support are compelling reasons for him to stay in Australia.
When asked about any hardship that might be caused by cancellation of his visa, the applicant told the Tribunal that cancellation would cause financial hardship because he would not be able to find good employment in Sri Lanka. His goal is to open a hospitality business. He said he is also fearful of the impact his own failure might have on his father’s health.
The applicant’s sister told the Tribunal that it would be very difficult for the applicant to start a life in Sri Lanka without an education. She said the goal is to improve his mental health so he is able to complete his study and look after their parents. She said she has had to take him to medical appointments and ensures he takes his medication because when untreated he says he is a loser and that he cannot face their parents. She said her children, aged 10 and 12, would be adversely impacted if something bad happened to the applicant. When asked to explain this statement she said the applicant previously dropped out of their lives for 2 years and as a result the older child was ‘down’ for a few months.
The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.
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 purpose of the applicant’s visa was to enable him to study. At the time the NOICC was issued the applicant had not been enrolled in a registered course for 17 months . The Tribunal finds his breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. The applicant’s non-engagement in the study for which his visa was granted weighs in favour of visa cancellation.
The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response he said it is his responsibility to financially support his parents and this together with fixing his mental health with his sister’s support are compelling reasons. The Tribunal accepts that the applicant’s sister has provided and continues to provide the applicant with support in relation to his mental health issues. The Tribunal gives this some weight against cancellation.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 21 January 2021 to 4 July 2022. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.
The applicant’s non-compliance for an extended period of 17 months prior to the NOICC weighs in favour of visa cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts that cancellation of the applicant’s visa will cause emotional distress to him and his family because he will not be able to complete his study in Australia. The Tribunal accepts that the psychological and emotional hardship which will be caused to the applicant may exacerbate his existing mental health conditions. The Tribunal gives this some weight against cancellation.
The applicant and his sister claimed that their father’s health would be adversely affected if the applicant returns to Sri Lanka without a qualification. There was no evidence to substantiate this claim and the Tribunal gives this no weight..
Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control
The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant said he was unable to maintain enrolment because of family, health and financial issues. He said he was overwhelmed by the difficulties he faced in 2021 and he struggled with his day-to-day life. He underwent surgery in December 2021 and was involved in motor vehicle accident in March 2022. The accident caused his physical health, mental health and financial problems to worsen.
The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. However, the Tribunal finds there are extenuating or compassionate circumstances in this case and Tribunal gives this some weight against cancellation.
Past and present behaviour of the visa holder towards the Department
There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.
Whether there would be consequential cancellations under s 140
There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.
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
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.
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
The Tribunal notes that the applicant’s sister said her children would be adversely affected if something bad happened to the applicant. In support of this she referred to her older child being ‘down’ for a few months during the 2 years he was absent in the children’s lives. There was no evidence to substantiate the applicant’s sister’s contention.
The applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.
Any other relevant matters
The Tribunal is not aware of any other considerations in relation to the cancellation.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking the study for which his visa was granted. The Tribunal has found that the cancellation will not affect any other person’s visa and it will not be in breach of Australia’s international obligations. The Tribunal has found that there are compelling reasons for the applicant to stay in Australia and that there are extenuating or compassionate circumstances in this case. In making these findings the Tribunal places weight on the medical evidence provided and also on the forthright and spontaneous evidence of the applicant and his sister. The Tribunal accepts that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.
The Tribunal recognises that the cancellation of the visa is a significant matter and on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be not cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Christine Kannis
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.

[2023] AATA 1834

20 May 2023

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