Ratnarajah Danforth (Migration)

[2019] AATA 3659

Ratnarajah Danforth (Migration) [2019] AATA 3659 (25 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mosea Dayan Ratnarajah Danforth

CASE NUMBER:  1831238

HOME AFFAIRS REFERENCE(S):          BCC2018/1916504

MEMBER:D. Triaca

DATE:25 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 July 2019 at 1:38pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – length of non-enrolment – homesickness – unsatisfactory academic progress – 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. The applicant is a citizen of Sri Lanka. He seeks a review of a decision made by a delegate of the Minister for Immigration and Border Protection (the delegate) on 16 October 2018 cancelling his subclass 500 Student Visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The applicant’s student visa was granted on 25 January 2017 and he arrived in February 2017. His student visa had an expiry date of 15 March 2020 providing for approximately 3 years during which the applicant would be permitted to reside in Australia for the purposes of full time study.

3. The visa had been granted on the basis of conditions that the applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses fo study for the duration of his stay in Australia.

4. The issue in the present case is whether the ground of cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 19 July 2019 to give evidence and present arguments. He provided the Tribunal with some further documents including photographs of a car accident he was involved in, a tax invoice for the purchase of a Holden Astra, a copy of plane tickets to Colombo, evidence from Bulleen towing service and a Medical Certificate from Box Hill Hospital.

6. At the conclusion of the hearing, the applicant indicated that there were further documents he wished to provide the Tribunal. Accordingly, I reserved my decision and ordered that the applicant have until 4.00pm on 22 July 2019 by which to file any further documents he wished to rely upon. The applicant indicated he would be able to file his documents within this time frame. However, the applicant did not file any further documents within time, or at all, and the Tribunal has determined the application on the basis of the evidence before it.

7. For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS & EVIDENCE

8. The applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (Regulations) as they were, when the visa was granted. In the present case, the issue is whether the applicant breached condition 8202 of the Regulations. If the applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the act.

9. Condition 8202(2)(a) of the applicant’s visa requires the applicant to remain enrolled in a registered course. The delegate’s decision identifies the period from 17 October 2017 to 16 October 2018 as the relevant period during which the applicant was not enrolled in a registered course. This amounted to approximately 12 months during which the applicant was in continuous breach of the visa.

10. The Department of Immigration and Border Protection wrote to the applicant on 3 September 2018, notifying him of its intention to consider cancelling his student visa (the NOICC). That notice set out particulars of the alleged breach of condition 8202 by the applicant. The applicant was invited to comment on those allegations before the Department moved to cancel his visa.

11. The applicant provided a written response to the Department (the applicant’s NOICC response). In his response the applicant appeared to acknowledge the breach of the visa condition by explaining the circumstances giving rise to it. In his oral evidence before the Tribunal, the applicant confirmed that this was true and correct. He stated his Confirmation of Enrolment (CoE) was cancelled on 17 October 2017 and he did not enrol in any further registered course to the date of the delegate’s decision.

12. Accordingly, the Tribunal is satisfied was not enrolled in a registered course of study between 17 October 2017 and 16 October 2018 and in those circumstances finds the applicant was in breach of condition 8202(2)(a) of the visa.

    Consideration of the Discretion to cancel the Visa.

13. Having found 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

14. The applicant elaborated on the matters raised in his written response to the NOICC in his oral evidence before the Tribunal summarised as follows:

    (a)He arrived in Australia in February in 2017 and enrolled in a Certificate in Business at Holmes Institute in Melbourne.

    (b)His plan was to complete the Business study and then commence a Bachelors course in HR at Holmes.

    (c)He commenced Business studies but was unhappy in the course. It was his first time away from home and he was home sick. In April 2017 he returned home to Sri Lanka for a week due to homesickness. He provided the Tribunal with a copy of his plane tickets. The homesickness caused him stress and he missed classes.

    (d)He says he was not supported by university staff and feels he was treated badly by the university.

    (e)In about May 2017 his father purchased a vehicle for him to enable him to get a job. He found work in Australia, first as a cleaner and then as a pizza delivery driver in Doncaster. He says he continued to study whilst he worked.

    (f)He was involved in a car accident in Doncaster on 7 August 2017. He produced photos of the vehicle and evidence of the tow truck receipt dated 7 August 2017.

    (g)He reports that he suffered a spinal injury in the accident. He provided a medical certificate from Box Hill Hospital stating he was unable to work or study for the period 7 August 2017 to 25 August 2017. He says he provided a copy of this certificate to Holmes. He stopped going to classes at the time of the accident.

    (h)He says that that his injuries have never fully resolved. However, he did not seek further medical treatment. He has treated his injury with pain killers and other medication from Sri Lanka and medication purchased in Australia. He has also used heat oil on his back.

    (i)He says he returned to Holmes in September 2017 but was told it was too late to entire in further study. He says he tried to enrol and pay fees but was told it was too late.

    (j)In October 2017 his CoE was cancelled by Holmes. He appears to have been in a dispute with Holmes in relation to fees of approximately $3000 although it is unclear whether the non-payment of fees had any relation to the cancellation of the applicant’s CoE.

    (k)He says that he then went to a lawyer. He tried to arrange to entry into another school. He received offers from 3 other colleges. He was unable to obtain a release from Holmes and as a result he was not able to accept a place at the other colleges. He claims he repeatedly tried to re-enrol or obtain a release letter from Holmes but was unable to do so.

    (l)He was involved in a second car accident near the Jacksons Road exit near Noble Park. He did not provide the exact date of this accident. This accident involved another vehicle driven by his friend. He hurt his back in this accident and went to the Doctor once. He was prescribed medicine and went to massage therapy. His back still gives him pain.

    (m)He says he decided to wait six months until his principal course finished so he could obtain a release and apply at another education provider.

    (n)He says he has suffered depression but has not sought any medical treatment and does not have a formal diagnosis.

15. It is difficult to assess this application because the applicant has provided very few documents to support many of his claims. He did not produce any further documents despite being given extra time to do so at the conclusion of the hearing. Whilst it is not unusual to lose or misplace documents over time, one would expect an applicant to be able to produce some documentation to support his claim in relation to his attempts to enrol in other courses or obtain a release letter.

16. The Tribunal accepts that the applicant has experienced some difficulties whilst in Australia. It accepts that he was in two car accidents and that he has suffered injuries in that accident. It follows that the Tribunal accepts that he required medication and treatment and he may have some continuing back pain.

17. However, the only medical certificate provided by the applicant stated he was unable to work or study for a period of approximately 3 weeks in August 2017. By his own evidence he did not seek and is not receiving ongoing medical treatment in relation to these injuries. His evidence was that he went to the Doctor just once following the second car accident.

18. The applicant’s CoE was cancelled in October 2017. The NOICC was not sent to him until 3 September 2018 and his visa was cancelled by the Department on 16 October 2018, approximately 12 months since the cancelation of the CoE. The Tribunal considers this was a significant period of time during which the applicant was residing in Australia on a student visa but not studying or enrolled in any registered course in contravention of his visa conditions.

19. On the evidence before it, the Tribunal does not accept that the applicant’s injuries sustained in the car accidents created a situation whereby the applicant was unable to study for an extended period of time. It seems unlikely that the applicant could have suffered such severe injuries without the need for ongoing medical treatment.

20. It also accepts that he was homesick for a period and had some difficulties settling in Australia. However, homesickness and distress related to being separated from the applicant’s family and friends is not unusual for a student visa holder. Many student visa holders content with such difficulties during their stay in Australia. However, student visa holders are also required to meet the strict conditions attaching to their student visas. The Tribunal places little weight on the applicant’s claims he suffered from depression. There is no evidence of any formal diagnosis that might suggest he was suffering from a diagnosable mental health condition during the period in which he was in breach of the student visa. Accordingly, his failure to adhere to the visa conditions cannot be explained by a chronic mental health condition.

21. Whilst the Tribunal accepts the applicant may have arrived in Australia with an intention to study, and this is supported by his enrolment at Holmes, the Tribunal considers that the study purpose of the applicant’s stay in Australia, was quickly displaced once he arrived.

22. He provided very limited evidence in relation to his actual studies in Australia. He arrived in Australia in February 2017. His initial period of study appears to have been set back by homesickness and stress causing him to miss classes and punctuated by a return to Sri Lanka in April 2017. He missed further classes due to the car accident in August 2017. He says he was unable to return to classes in September 2017. He produced no documents relating to his study at Holmes that could demonstrate any academic progress during his stay.

23. At the same time, his evidence was that his father purchased a vehicle on his behalf and he was able to find work in Australia as a cleaner and pizza delivery driver.

24. The applicant’s CoE was cancelled in October 2017. Whilst he states he made attempts to re-enrol and seek a release from Holmes, there is no documentary evidence to corroborate this. He says he personally went to the office at Holmes to request a release and to re-enrol but the university staff did not assist him. He also says that he decided to wait six months for his principal course to finish so he could obtain a release and subsequently enrol with another provider. However he did not obtain a release and did not enrol with any provider after six months, or indeed for a period of approximately 12 months. On the face of it, the applicant spent approximately 12 months in Australia on a student visa without studying or being enrolled to study. This is a significant period of time. Further, there is no evidence he made any attempts to contact the Department in relation to his personal situation or his course provider to seek to defer his studies. The Tribunal does not consider the applicant has made any meaningful attempt to re-enrol in a registered course of study.

25. The applicant failed to demonstrate any significant hardship. He says that the cancellation of his visa would result in his studying being “ruined” and having wasted his time. He says his parents would be “upset”. The Tribunal accepts that he may have some emotional hardship due to returning home without achieving the qualification he had hoped for. However, the Tribunal does not consider any hardship the applicant may suffer is outweighed by fact that the applicant has acted in a manner inconsistent with the fundamental purpose for which his visa was granted for a considerable period of time.

26. The Tribunal has given consideration to the applicant’s expressed desire to remain in Australia and continue his studies. He says he wishes to stay in Australia and return to studying a Bachelor of Human Resources. However, that desire must be tempered with the extent of his non-compliance with the student visa and his lack of demonstrated academic progress during the period in which the applicant was, in fact, enrolled.

27. There is no evidence before the Tribunal regarding the applicant’s past or present behaviour towards the Department. The Tribunal makes no adverse findings against the applicant in that regard.

28. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the applicant’s visa is cancelled.

29. The Tribunal notes that if the Applicants’ visa is cancelled, the applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a 3 year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, in this case the applicant’s evidence was that if the visa is cancelled he will return home to Sri Lanka therefore there is no indication that he will become unlawful or be subject to detention and I give this factor no weight.

30. Australia’s international obligations do not appear to be engaged by the circumstances of this case.

31. In all the circumstances, the Tribunal is satisfied that the applicant’s visa should to be cancelled.

    DECISION

32. 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.