SELLAPPERUMAGE (Migration)

[2019] AATA 1610

SELLAPPERUMAGE (Migration) [2019] AATA 1610 (11 January 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dilshan Ranjan Perera SELLAPPERUMAGE

CASE NUMBER:  1611819

DIBP REFERENCE(S):  BCC2016/1911499

MEMBER:Rachel Westaway

DATE:11 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 11 January 2019 at 11:51pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course for seven months – business studies – financial difficulties – family illness – no exceptional circumstances for breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994(Cth), Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 July 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector 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 complied with a condition on his visa, namely condition 8202(2)(a) as he was not enrolled in a registered course. 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 on 2 March 2017 to give evidence and present arguments. The Member’s term at the Tribunal conclude before the case was finalised and as such it was constituted to a new Member and a second hearing was scheduled for 2 March 2018. The applicant attended both hearings with his representative they were conducted with the assistance of an interpreter in the Punjabi and English languages.

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.

6. The Tribunal received the following documents in relation to the applicant’s study history:

   ­   Certificate of Unit Credit towards a Diploma in Patisserie issued by The City of Guilds of London Institute, dated 9 January 2009

   ­   Sri Lankan National Certificate for the occupation of Baker - NVQ Level 3, dated 12 October 2009

   ­   Certificate of NVQ Level 3 - Bakery issued by Win-Stone School of Culinary Arts, dated 10 January 2009

   ­   Academic Transcript issued by Victoria University for a Certificate III in Business, dated 28 February 2017

   ­   Academic Transcript issued by Victoria University for a Certificate II in General Education for Adults, dated 28 February 2017

   ­   Academic Transcript issued by Victoria University for a Certificate I in Vocational Preparation, dated 28 February 2017

   ­   COE 58617729 for a Certificate III in Business at Victoria University, commencing 4 February 2013 and ending 30 June 2013

   ­ COE 5861AB79 for a Diploma in Business (Enterprise) at Victoria University, commencing 22 July 2013 and ending 30 June 2014

   ­   COE for a Bachelor of Business (International Hospitality Management) at Victoria University, commencing 21 July 2014 and ending on 30 July 2017

   ­   Certificate III in Automotive Mechanical Technology issued by Chislom Institute, dated 20 June 2014, and a Record of Results, issued 29 April 2016

   ­   Diploma of Automotive Management issued by Chisolm Institute, dated 29 September 2015, and a Record of Results, issued 29 April 2016

   ­   Certificate IV in Frontline Management issued by Chisolm Institute, dated 4 December 2014

   ­   Diploma of Management issued by Chisolm Institute, dated 18 September 2015

7. The Tribunal received the following documents in relation to the applicant’s efforts to enroll in a registered course of study:

   ­   Email correspondence by Education Access (Australia) (EAA) dated 10 and 11 May 2016 concerning the applicant’s request for a letter of offer

   ­   Email by applicant dated 23 June 2016 applying to Stott’s College for admission to the Bachelor of Business Management Studies program

   ­   Email by Stott’s College dated 15 July 2016 providing the applicant with a Letter of Offer and notifying acceptance

   ­   COE 8247C086 for an Advanced Diploma of Business at Education Access (Australia), commencing the 18 July 2016 and ending 16 July 2017

8. The Tribunal received the following documents in relation to the applicant’s father’s health:

   ­   Health record on the letterhead of the Neurology Unit II – Ward 16 of the National Hospital of Sri Lanka setting out the tests undertaken and prescribed medicines. It appears to relate to the period 2 July 2015 to 6 July 2015. It records a diagnosis of recurrent TIA and lists the applicant’s father’s health problems as including DM, Hpt, Dyscipidaemia and CVA – 2010. It noted his medical history as including sudden onset numbness in his right hand, slurred speech, unsteadiness of gait and blurred vision. It appears the symptoms persisted for 2 hours and then he recovered completely and had no limb weakness. His alcohol and smoking habits are noted and advice given to stop smoking and make proper dietary modifications.

   ­   Record by Medihouse Henegama relating to fasting blood sugar test, dated 10 January 2016

   ­   Record by Nawaloka Medical Centre relating to results of fasting blood sugar test, dated 30 January 2016

   ­   Record by New Sethma Hospitals relating to blood profile reports, dated 11 January 2016

   ­   Medical certificate on the Nawaloka Hospitals PLC letterhead by Dr. Padma S. Gunarat, Consultant Neurologist, advising that the applicant’s father has been suffering from DM-HP and Dyslipiderma. It also states that he was hospitalized for 4 days following a stroke which resulted in loss of speech and mobility for 2 months. The letter is undated.

9. Additional documents on the Department file included:

   ­   Letter of Offer (Conditional) for the Advanced Diploma of Business at Education Access Australia, dated 19 May 2016

   ­   A letter from the applicant’s father confirming he was unable to pay his son’s tuition fees due to illness, however is now in a position to resume financial support, dated 21 July 2016

   ­   A translated copy of the applicant’s father’s business registration certificate

   ­   Echocardiogram report stamped by Dr Sepalika Mendis at Nawaloka Hospitals PLC, accompanied by notes and ultrasound images, dated 26 January 2016

   ­   Letter of Offer for Bachelor of Business by Stott’s College, dated 15 July 2016

10. The applicant responded to the Notice of Intention to Consider Cancellation (NOICC) on 21 July 2016. His response can be summarized as follows:

    ­   The grounds for cancellation do not exist and his visa should not be cancelled. He explains that his father ran a lucrative business called ‘Ranjan Tours and Motor Garage’ and financially sponsored the applicant’s education in Australia until he suffered a stroke in the second half of 2015 and was no longer able to run his business and earn money to support the applicant.

    ­   The applicant obtained a Letter of Offer dated 19 May 2016 for an Advanced Diploma at EAA prior to receiving the NOICC, however did not obtain a COE at that time because he did not have the funds to pay the tuition fees. He also obtained a Letter of Offer from Stott’s College on 15 July 2016 for a Bachelor of Business.

    ­   The applicant’s father is recovered and now has the means to pay for his education. The applicant is enrolled in the Advanced Diploma Business at EAA which began on 18 July 2016.

    ­   The applicant’s parents are concerned about his father’s health and fitness to run their business in the future. His father is insistent that he obtain a bachelor degree from a Western country and then wishes him to take over the family business.

    Did the applicant comply with Condition 8202?

11. 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 registered course, or in limited cases, a full time course of study or training: 8202(2)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

13. The applicant supplied a copy of the Delegate’s decision when applying for review to the Tribunal. The Tribunal explained that the Provider Registration and International Student Management Systems (PRISMS) recorded that the applicant did not appear to have been enrolled in a registered course of study from 1 January 2016 until 15 July 2016 when he was sent a Notice of Intention to Consider Cancellation. On 19 July 2016 the Tribunal notes he did obtain a new confirmation of enrolment.

14. The Tribunal explained PRISMS to the applicant stating it is a database used by the Department to keep records on all overseas students and their attendance and enrolment information. The Tribunal asked the applicant if he disputes that he was not enrolled during this period and he did not. The first Tribunal explained condition 8202 which is a condition placed on the student visa requiring the holder to be enrolled in a registered course and that given he has confirmed that he was not enrolled in a registered course during the period outlined, then he is in breach of the condition and that this gives rise to the grounds for cancellation.

15. The applicant confirmed he was not enrolled in a registered course and this was also supported by the PRISMS records.  As such, the Tribunal finds that the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

16. 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

17. 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’

    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

18. The Tribunal asked the applicant what his purpose was in coming to and staying in Australia. He said that he came to further his studies and has been in Australia since 18 February 2013.

19. At the first Tribunal hearing the applicant informed the Tribunal that he completed High School in Sri Lanka and he had an interest in hospitality. He decided to come to Australia because he wanted to obtain a higher and better qualification; however the hospitality course he commenced did not have the things that he expected and he wished to study in a more practical manner.

20. The applicant said that after some discussion he agreed that he would take over his father’s business, and based on his father’s opinion and advice he decided to change courses. He further stated that he also had an interest in mechanics due to his father’s business and because of this he joined Chisolm and studied Certificate III in Automotive Mechanical Technology, Certificate IV in Frontline Management, Diploma of Management and a Diploma of Automotive Management. Then his father became ill and he was not able to enroll in the next stage of his studies as planned.

21. At the second Tribunal hearing the applicant stated that coming to Australia to study was a dream and he did his studies continuously from 2013 to 2016, without any interruptions, until his financial difficulties arose. He said that if given an opportunity to pursue his dream of completing a bachelor degree he promises that he will do that and return to Sri Lanka. He stated that he hasn’t seen his parents or fiancé for three years and so his only intention is to finish his degree and get back and start life.

22. Having regard to the applicant’s evidence, I accept that he may have travelled to Australia intending to study, but given his conduct in Australia, as set out below, I give this only little weight towards the visa not being cancelled.

    the extent of compliance with visa conditions

23. At the first Tribunal hearing the applicant confirmed that he was not enrolled in a registered course of study on 1 January 2016 and that he subsequently became enrolled in July 2016 after approaching Stott’s College and EAA. The first Tribunal Member asked the applicant if he continued with his course or if cancellation interfered. The applicant stated that he attended one session of study before his visa was cancelled and he did not continue the course because he lost his study rights. He said that he has not studied since.

24. The applicant’s representative submitted that the applicant had sought to re-enroll, as evidenced by emails between the colleges and the applicant’s education agent. He further stated that the applicant had the intention of completing his bachelor, he has been a good student and completed his studies, and it is his view that the applicant is a genuine student.

25. The applicant confirmed he had not breached any other conditions associated with his visa. The Tribunal notes that the applicant was not enrolled in a registered course for a period of approximately seven months.

26. The applicant explained his reasons, as discussed in more detail below. The applicant stated, and I accept, that he did not breach any other conditions on his student visa.

27. As noted below, I do not find any of these reasons for his breach of the enrolment condition sufficient. I considered this condition to be important, because one of the primary reasons for holding a student visa was to be enrolled and to study, and he had admitted to doing neither for seven months. When I weigh his reasons, and my views on those reasons as set out below, against the period of non-enrolment, I have significant concerns about the period of breach which leads me to give this factor some weight towards the visa being cancelled.

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

28. At the first Tribunal hearing the applicant stated that before his visa was cancelled he planned to complete a Bachelor of Business Management and then take over his father’s business in Sri Lanka. He said that if his visa is cancelled he will not have a qualification and no bachelor degree to take over his father’s business. The Tribunal asked what qualifications are necessary to run the business. The applicant stated that he needs this qualification to take over his father’s business because his father spent money on his education and expects it to be completed. The applicant said that his father is a well-educated man and has a Diploma of Management.

29. The applicant stated that he wants to fulfil his father’s wish for him to obtain a bachelor degree and it would be bad for him to return to Sri Lanka after three years without a degree. He confirmed that his family knows that his visa has been cancelled and are very worried that he will not complete his studies. He talks to his family regularly.

30. At the second Tribunal hearing the applicant was asked to discuss the impact cancelling his visa would have on him and his family. The applicant stated that his initial intention was to study hospitality management and then later his father thought that automotive management would be better for the family business, providing for the advancement of the business and a better future for the applicant. He said that he was intending to finish a bachelor in this field which would open up a better and brighter future for him.

31. The Tribunal asked the applicant if he would be able to complete this study in Sri Lanka. He stated that he can finish a Certificate III in Sri Lanka, but any advanced courses are not available in Sri Lanka.

32. The applicant’s representative submitted that the applicant’s years have been wasted by the period of time that has lapsed since his visa was cancelled and he is getting older.

33. I accept that there may be some hardships to the applicant and his family if the visa remains cancelled and that they would be disappointed. However the applicant would still be able to study in Sri Lanka and I do not accept that advanced courses do not exist with face to face or online studies. Furthermore should the visa be cancelled, whilst I accept that the applicant has stated he is getting older, and he would be prevented from applying for a visa for three years, he is still young and could undertake further studies in the future. Furthermore the Tribunal does not accept that the applicant could not obtain a job in Sri Lanka without qualifications or that he requires tertiary qualifications from Australia to run his father’s business. Whilst I appreciate that tertiary studies may enhance his future, I do not accept that he would be prevented from obtaining a tertiary education should he return to his home country or prevented from working for his father. I do not accept that these would be significant hardships and I give this only some weight in favour of the visa not being cancelled.

    circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

34. At the second Tribunal hearing the applicant was asked the reason why he was not enrolled and he stated that it was because his father became unwell in July 2015. His father’s illness was a ‘brain stroke’, he was disabled and he could not walk or speak. He was hospitalized for just under a week. At the time he was released he couldn’t walk and was struggling with his speech. He was referred to physiotherapy because the hospital did not offer this.

35. The Tribunal asked the applicant about his other family members. He stated that his mother and younger brother live in Sri Lanka. His mother is a housewife and his younger brother is completing his schooling. The applicant’s elder brother has lived in Italy for 8 years where he works part-time and has a temporary residence visa application pending. The applicant said that he did not return to Sri Lanka when his father had a stroke, he wanted to, but was constrained by money and study.

36. The applicant stated that his father generated income through an automotive business he owns that provides vehicles for tourism and repairs. His father’s job is a mechanic and he does all the coordination for the supply of vehicles to other institutions. He has drivers and mechanics working for him, including 3 drivers and 1 mechanic. The applicant stated that no family members are involved in the business. The Tribunal notes that the applicant stated to the first tribunal Member that his father employed ten workers.

37. The Tribunal asked the applicant how his father’s stroke impacted his study and ability to pay. The applicant responded that his father would send money for his education; however when his father fell sick in July 2015 he did not have the opportunity to send money to enable the applicant to enroll for study in 2016.

38. At the first Tribunal hearing the applicant stated that without any income from his family he started working part time at a garage to earn a living. The applicant was asked if he had any savings. He said that he did not have much savings to spend on his enrollment fees and that he had spent some on his Advanced Diploma.

1. At the second Tribunal hearing it was put to the applicant that in order to apply for a student visa you are required to show evidence of your ability to pay for your studies and living costs in advance and he was asked why he was relying on immediate payments from his father. The applicant said that when he came to Australia in 2013 there was a fund dedicated for his educational purposes, but during 2013 to 2015 his father used that money on his business endeavors, so when he fell sick he did not have the money to send.

2. The Tribunal asked the applicant whether he approached his course provider for permission to pay his fees by smaller installments. He said that he was enrolled in Dandenong at Chisolm TAFE and then his enrolment finished in 2015 and it was his intention to enroll in a new college for 2016. He stated that he finished his study at Chisolm.

3. The Tribunal asked the applicant, given his father’s condition, why he didn’t return to Sri Lanka instead of breaching the condition on his visa by not being enrolled in a registered course of study. He stated that he remained in Australia to ensure he completed a bachelor degree because finishing was important to him and his father.

4. The Tribunal put to the applicant that nothing would have stopped him from returning to Australia when his father had the money to pay for completion of the course, rather than breaching his visa conditions. The applicant said that he was ignorant of the situation and he thought that because he had not registered in a course he would not be able to go to Sri Lanka.

5. The Tribunal put the applicant that he had previously returned to Sri Lanka. The applicant replied that he visited once in January 2015.

6. The Tribunal put to the applicant that he had informed the previous Tribunal Member that he visited in 2014. He said that he cannot recall the exact year, but he feels it was January 2015.

7. The Tribunal put to the applicant that given he had previously travelled back to Sri Lanka he knew that he could leave Australia and return back. It then asked why he didn’t do this, noting that while he had said earlier that he didn’t know he could leave, his statement doesn’t make sense because he had already left Australia to visit Sri Lanka. The applicant stated that in 2015 when he departed he was an enrolled student and in 2016 he wasn’t an enrolled student and he was afraid that he could not come back.

8. The Tribunal put to the applicant that it finds it perplexing that he was not concerned remaining in Australia on a student visa while not enrolled in a registered course of study. The applicant said that his intention was to get himself enrolled in a registered course and his father promised that he will be able to send money in May 2016. He said that he sent an application to a college named EAA.

9. The Tribunal asked the applicant how his father paid the staff in his business while unwell. The applicant said that not all the businesses were functioning and his father paid his workers from the money generated by the businesses that were functioning.

10. The Tribunal put to the applicant that it appears odd that his father would not look after his son who is studying overseas and risked losing his visa if he cannot pay for his study, but he is prepared to pay for mechanics that could easily be re-hired at another point in time. The applicant responded that for his welfare his father needs to send $1500 per month. In comparison, the salary of a mechanic is $100-150 per month. His father could not meet his requirements, but he could find money to pay the mechanics.

11. The Tribunal asked why his father needed to pay the mechanics if the business was not operating and generating income. The applicant said his father was hoping that he would get well soon and so he did not want to stop all the business activities. His intention was to get on with the business if he became healthy again. The major portion of the business’ income was generated by the tourism activities which his father used to manage himself. A certain amount of mechanical work existed and the mechanics were not a huge burden and were retained to ensure the mechanic work continued. The major portion of income was lost because the tourism activities ceased.

12. The Tribunal put to the applicant that it was struggling to accept that his father was so unwell that it had such an impact on the business that he was unable to pay money for his studies and the medical evidence before the Tribunal does not suggest somebody that unwell that they are not able to work and contribute to running a business, and that would lead to an impact like that suggested.

13. The Tribunal noted that the medical certificate from Nawaloka Hospital, which is limited in information and not dated, says that his father had a stroke and was unable to speak or walk for two months and he was hospitalized for four days and it was recommended he rest for four months. The Tribunal stated that it considers it highly unusual that somebody who had a stroke that severe and could not speak or walk for two months would be sent home in four days.

14. The Tribunal stated that the medical report from the National Hospital of Sri Lanka does not necessarily imply his father experienced a stroke because the information indicates blood tests and problems that do not pertain to a stroke. The Tribunal read from the report, noting that his father’s symptoms persisted for two hours and he recovered completely.

15. The Tribunal put to the applicant that whilst it can accept that maybe his father had an illness, he has provided oral evidence that is quite different to the report from the National Hospital of Sri Lanka which contradicts his claims. It also contradicts the undated medical certificate from Nawaloka Hospital. The Tribunal noted the letterhead on the Nawaloka Hospital medical certificate doesn’t look professional for a hospital because it has no logo or stamp or certification by the hospital and no specific dates. The applicant was asked if he would like to make comment about this. He responded that his father was initially admitted to the government hospital, and because he was only referred to physiotherapy that was not provided by the hospital, his family consulted a specialist in a private institution and this letter is from the private institution.

16. The Tribunal stated that whether the institution is public or private it doesn’t expect to see medical evidence that differs so vastly. The applicant was asked if he would like to make comment about this. The applicant said that he cannot comment because these documents were sent by his father.

    The Tribunal put to the applicant that he has provided two pieces of medical evidence that are significantly different from each other yet are signed by a person of the same name. This causes concern about which information is correct and casts doubt over the credibility of the evidence and his claims to date. The Tribunal asked the applicant if he could explain how such vastly different explanations concerning his father’s health issues and ability to walk and communicate were provided by each hospital. The applicant responded that the intention of the government hospital was for his father to rest. He said that physiotherapy is not done in government hospitals and his family had to hire a physiotherapist to come and do physiotherapy at home. After recovery his father went to the private hospital for a further check. Then the other tests were done, for example the blood tests, and then the medical certificate was issued. The applicant said that this is according to what his father related to him and all he knows. He added that his mother briefed him on his father’s condition and he did not have the chance to go to Sri Lanka and see how it was.

17. The applicant offered to provide a fresh medical certificate. The Tribunal said that it is not interested in a fresh medical certificate because it would not diminish the discrepancy in other information.

18. I have had regard to the applicant’s explanations and responses at the hearing. I have found that the applicant was not enrolled in a registered course for a period of approximately 7 months until his visa was cancelled. On considering his claims, I do not accept that his reasons and the evidence before me indicate that for this period there were exceptional circumstances for the breach. Nor do I accept that these reasons explain the breach here. I place limited weight on his explanation that his father did have the money for his studies but spent it on the business and then became sick and was unable to pay. Whilst these circumstances may well have arisen, they were not beyond the applicant’s control.  His visa was there to enable him to study. There was nothing preventing him from returning to his own country to avoid the breach and then returning when he had more money. Furthermore the applicant’s father was his financial sponsor and had a responsibility and undertaking. Whilst he re enrolled following the NOICC, he provided no evidence of such attempts to rectify his status prior. I have considered his explanations for why he was not enrolled for this significant period and therefore in breach, and I do not accept the circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time and I give this factor very significant weight towards the visa being cancelled.

    past and present behaviour of the visa holder towards the department

19. At the first Tribunal hearing it was acknowledged that the applicant replied to the NOICC.

20. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. I give this some little weight in his favour.

    whether there would be consequential cancellations under s.140

21. The applicant confirmed he has a partner but she is not on his visa.

    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

22. The applicant is on a bridging visa and would be given a limited period in which to make arrangements to depart the country. The Tribunal informed the applicant that this may involve 1-2 weeks’ notice to leave the country and asked if there is any reason that he would not be able to leave. The applicant informed the Tribunal that he owns a vehicle and he would need time to sell his vehicle before departing the country.

23. The Tribunal invited the applicant to comment on how he would be impacted by the consequence of a three year ban on future travel to Australia. The applicant stated that if allowed to resume his studies he could complete the bachelors in two years and go back to Sri Lanka. However, if he is barred from coming to Australia for three years and if he has to go to Sri Lanka and start work, he will never be able to study again.

24. The Tribunal asked why he would not be able to study again. He said that he is 30 years old and he has a fiancé and he is being pressured to get married. He said that if he goes back and gets settled he will not be able to pursue any education after that or if he has to come back to Australia there will be two people. The Tribunal asked why two people would cause a problem. He responded that it will stall his career goals and by the time he finishes study he will be 35 years old and returning to Sri Lanka at 35 years old will be quite a hindrance because he is getting old and this will be an issue.

25. Whilst the Tribunal accepts that the applicant would like to complete his studies quickly, I give this limited weight as he is only 30 at the time of the hearing and could still undertake studies as many people do at this age or older.

    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

26. In this case it does not appear that this consideration is relevant as when asked the applicant indicated there was no reason he cannot return to Sri Lanka and has not made any claims which would relate to this consideration.

    Other matters

27. I have had regard to the fact that the applicant has provided evidence that he enrolled in a course after he received his NOICC. I also note that the applicant and his representative have stated he is a genuine student and has successfully completed previous courses of which I note he has supplied evidence of.  Whilst I give this some weight, it does not detract from the significant period in which the applicant was in breach of a key condition of his visa. The very essence of a student visa is to study and it is a temporary visa. Being unenrolled in a registered course of approximately half the year is serious and the matters the applicant has raised are not sufficient in the Tribunal’s mind not to cancel the visa.

28. I have had regard to his responses but I find, in light of my findings above, that this adds very little to his case and I give it only very little weight towards the visa not being cancelled.

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

    DECISION

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

    Rachel Westaway
    Senior 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.