Ranthilakage (Migration) - [2023] AATA 1834

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ranthilakage (Migration)

Details

AGLC: Ranthilakage (Migration) [2023] AATA 1834
Case: [2023] AATA 1834
Decision Date: 20 May 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Subclass 500 (Student) visa held by the applicant. The dispute arose because the applicant failed to maintain enrolment in a full-time registered course for an extended period, which constituted a breach of condition 8202 of the Migration Regulations 1994. The Tribunal was required to determine whether the applicant had indeed breached this condition and, if so, whether to exercise its discretion to cancel the visa, considering any extenuating or compassionate circumstances.

The Tribunal found that the applicant had breached condition 8202(2)(a) of his visa, as evidenced by information from the Provider Registration and International Students Management System (PRISMS) showing no enrolment in a registered course between 21 January 2021 and 4 July 2022. However, the ground for cancellation did not mandate mandatory cancellation, allowing the Tribunal to consider its discretion. In exercising this discretion, the Tribunal had regard to the applicant's explanations for the period of non-enrolment, which included difficulties with his initial nursing studies, a subsequent termination letter from his university, the onset of the COVID-19 pandemic leading to border closures and study disruptions, urgent surgery, a motor vehicle accident resulting in physical and psychological impacts, and financial difficulties due to sanctions imposed by Sri Lanka on overseas money transfers.

The applicant provided evidence of his medical conditions, the motor vehicle accident, and his subsequent referral for PTSD treatment and physiotherapy. He also submitted new Confirmation of Enrolments for courses in Commercial Cookery and Hospitality Management, along with a statement of purpose indicating a genuine intention to pursue a new career path in the culinary industry, supported financially by his sister and brother-in-law. The Tribunal weighed these circumstances against the breach of the visa condition. On balance, and considering the totality of the applicant's situation, the Tribunal concluded that the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 500 (Student) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

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