Singappulige (Migration)

[2019] AATA 1993

Singappulige (Migration) [2019] AATA 1993 (27 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanjeewa Anuruddha Premarathne Singappulige

CASE NUMBER:  1801086

HOME AFFAIRS REFERENCE(S):           BCC2017/3598136

MEMBER:Peter Haag

DATE:27 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 27 April 2019 at 11:00am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – enrolment cancelled due to non-payment of fees – lacked financial capacity – lost interest in studies – lacked motivation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140, 189
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202, Public Interest Criterion, 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 January 2018 made by a delegate of the Minister for Home Affairs 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 has not complied with condition 8202(2)(a), a mandatory requirement which was imposed on his visa, and furthermore, the delegate was satisfied the grounds for cancelling the visa outweighed the grounds for not cancelling. 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 10 April 2019 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant, as the holder of a Student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with condition 8202?

6. Condition 8202, 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).

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

8. According to the applicant’s evidence, and information the applicant provided to the Tribunal, Deakin University was the applicant’s initial education provider. Further, on 14 July 2016 the applicant obtained a release letter from Deakin University to study at Southern Cross University. After that the applicant entered Southern Cross University; he part-paid the course fees for semester 1, but did not pay the full amount. After the University informed the applicant his enrolment would be cancelled if he failed to pay the outstanding fees, the applicant failed to pay the outstanding fees, and consequently, the University cancelled his enrolment. Therefore, the applicant has not been enrolled in a registered course of study since 24 March 2017.

9. The evidence before the Tribunal indicates the applicant did not enrol in another course of study after Southern Cross University cancelled his enrolment. Accordingly, the Tribunal finds the ground for cancellation of the applicant’s Student visa is made out, and more particularly, the applicant has not complied with visa condition 8202(2), a mandatory condition imposed upon the visa.

   Consideration of the discretion to cancel the visa

10. Having found that the applicant has not complied with a mandatory 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’.

11. The Tribunal will now consider the discretionary factors relevant to the Tribunal’s assessment of whether the applicant’s Student visa should remain cancelled.

    The purpose of the visa holder’s travel to and stay in Australia

12. In evidence the applicant indicated the only purpose for which he travelled to, and stayed in Australia, was to study in a registered course of study. The evidence demonstrates the applicant did not enrol or study in a registered course of study at any time after Southern Cross University cancelled his enrolment.

13. The Tribunal is satisfied on the available evidence that once the applicant was no longer in a position to fulfil the original purpose for which he travelled to and was staying in Australia, he was no longer capable of meeting the purpose for which the visa was granted to him.

14. The Tribunal finds the applicant’s inability to meet the visa-related purpose of his travel to and stay in Australia favours cancellation of the Student visa.

    The extent of compliance with these conditions

15. Between 24 March 2017 and 9 January 2018, the date of the delegate’s decision to cancel the visa, the applicant was not enrolled in a registered course of study and he remained in Australia. The applicant remained in Australia despite the fact that he was no longer able to fulfil the purpose for which his visa was granted to him.

16. After Southern Cross University cancelled the applicant’s enrolment, he attempted to enrol in Holmes College and UIT College. Neither college would enrol the applicant because he was unable to provide to either institution a letter of release from Southern Cross University. According to the applicant’s evidence, Southern Cross University refused to issue a letter of release because he owed the university approximately AUS $2,400 in unpaid fees. The Tribunal is of the view the applicant was in that position because he lacked the financial capacity to continue to comply with the enrolment conditions of his visa.

17. Having regard to the foregoing considerations, the Tribunal notes in favour of the applicant that he complied with his visa conditions up to 24 March 2017, but thereafter, the applicant failed to comply with his visa conditions; on balance, the inability of the applicant to meet the conditions imposed on the visa favour cancellation of the visa.

    The degree of hardship that may be caused to the visa holder and any family members

18. The applicant informed the Tribunal that his father was aware his Student visa had been cancelled but the applicant’s mother is unaware of the cancellation. The applicant’s mother, according to the applicant, is unwell and he doesn’t want to tell her that his visa was cancelled. The applicant indicated to the Tribunal he hoped he would be given a second chance to study in Australia, and he would be upset if the visa remained cancelled. This evidence demonstrates cancellation of the visa may cause hardship to the applicant and his parents; accordingly, the Tribunal gives this consideration some weight against cancellation of the visa.

19. In evidence, the applicant also informed the Tribunal that he is aiming to work in the information technology sector in his home country (Sri Lanka). The applicant also informed the Tribunal that his father owned a private college in Sri Lanka in which he taught information technology. That college ceased to operate in 2015. The applicant’s father now owns and operates a business in Sri Lanka which offers a variety of computer-related services including computer repairs. The applicant informed the Tribunal that his father would employ him in his IT business when he returned to Sri Lanka. The applicant also informed the Tribunal that he is capable of working in and performing computer maintenance work in his father’s business. Additionally, the applicant informed the Tribunal that the benefits gained so far from his studies in Australia, would be useful in his father’s business.

20. The foregoing evidence demonstrates the applicant’s studies in Australia, and his present skill-set will be useful in his father’s business. The Tribunal notes the applicant is now able to work in his chosen field of employment in his home country, and employment in that field is currently available to him.

21. The degree of hardship the applicant and his parents may suffer as a consequence of cancellation of the visa is counterbalanced by the employment prospects currently available to the applicant in his home country. Accordingly, the Tribunal is satisfied the degree of hardship that may be caused by cancellation of the visa does not favour a decision not to cancel the visa.

    The circumstances in which the ground for cancellation arose

22. In considering the circumstances that gave rise to Southern Cross University cancelling the applicant’s enrolment, the Tribunal has given regard to folios 3, 4, 5, and 6 of the delegate’s decision – the applicant provided a copy of the delegate’s decision to the Tribunal – the document headed “The request to not cancel my student visa” provided by the applicant to the Department, and the document headed “Statement of Purpose” provided by the applicant to the Tribunal during the hearing, and of course, all the documents in the Departmental file and the Tribunal file.

23. In essence, the applicant claims that upon his return to Australia from Sri Lanka in June 2016, he felt stressed, unhappy and a little unwell, so he transferred from Deakin University to Southern Cross University, hoping to find there an environment that would provide him with more personal support. Upon arrival at the University the applicant discovered the facilities at the University were really poor, and the academic standards did not measure up to his expectations.

24. The applicant is responsible for his decision to transfer to Southern Cross University. The applicant’s claim that the study facilities and academic standards of the University were not to his liking, is not, a satisfactory reason for the applicant to lose interest in his studies.

25. The applicant advances additional reasons for losing interest in his studies. The applicant claims the circumstances in which he found himself at Southern Cross University disappointed and frustrated him; those feelings combined with the stress he was feeling because his mother was unwell, and being away from home, also served to induce the applicant to lose interest in his studies.[1]

    [1] Document headed “The request to not cancel my student visa”, dated 18 December 2017, provided by the applicant to the Department: Departmental file folios 55 to 57; also see “Statement of Purpose”, Tribunal file.

26. At the time the applicant lost interest in his studies he was in debt to Southern Cross University for unpaid fees. While those fees remained unpaid, the applicant was unable to enrol in another course of study because the University refused to provide to him a letter of release; without that letter of release the other institutions in which the applicant wanted to study would not allow him to enrol.

27. The Tribunal finds the foregoing circumstances gave rise to the cancellation of the visa. The Tribunal finds the fact that the applicant lost interest in his studies is the primary circumstance that led to the cancellation of the visa. Additionally, the Tribunal finds the applicant, by 24 March 2017, lacked the motivation to fulfil his obligation to be enrolled in a registered course of study.

28. Having regard to the foregoing considerations, and in particular, the fact that the applicant lost motivation to study and interest in his studies, the Tribunal finds the circumstances in which the ground for cancellation of the visa arose favours cancellation of the visa.

    The visa holder’s past and present behaviour towards the Department

29. There is no evidence before the Tribunal relevant to the applicant’s behaviour towards the Department that could be regarded as unsatisfactory behaviour. The Tribunal gives some weight to this consideration in favour of not cancelling the visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

30. In evidence before the Tribunal the applicant made clear that no other person’s visa would, or may be, adversely affected by the cancellation of his Student visa. Consequently, in this decision the Tribunal places no weight on this consideration.

    The legal consequences of a decision to cancel the visa

31. The applicant currently holds a Bridging visa E which allows him to remain lawfully in Australia after cancellation of his Student visa, and affords to him an opportunity to finalise any outstanding matters.

32. If the decision of the delegate is affirmed, and the applicant’s Student visa remains cancelled, the applicant may become an unlawful non-citizen and may be liable to detention under s.189 of the Migration Act, if he does not resolve his immigration status.

33. Additionally, the applicant will be subject to s.48 of the Act, which means that he will have limited options to apply for further visas in Australia. The applicant will also be subject to Public Interest Criterion 4013.

34. Any immediate potential inconvenience to the applicant that may result from the cancellation of the visa may be met by his Bridging visa E; that visa affords the applicant an opportunity to finalise outstanding matters.

35. In considering this factor, the Tribunal gives it some weight in favour of not cancelling the visa because the legal consequences of cancellation may serve to frustrate, to some degree, the applicant’s future plans. Nevertheless, any legal consequences that may result to the applicant from cancellation of the visa would arise from the ordinary operation of Australian law. There is no evidence before the Tribunal that the applicant would suffer any unintended legal consequences from cancellation of the visa. On balance, the Tribunal gives slight weight in favour of not cancelling the visa, to this consideration.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the cancellation of the applicant’s visa

36. There is no evidence before the Tribunal which indicates cancellation of the applicant’s visa would result in a breach of Australia’s international obligations. In evidence the applicant acknowledged he would not be at risk in any respect if he returned to his home country and that more generally he is not in need of protection.

    Any other relevant matters

37. The Tribunal asked the applicant if he wished to make any additional submissions or provide further evidence to the Tribunal in relation to any other matter he thought the Tribunal should take into account for the purposes of this hearing. The applicant indicated there were no other relevant matters he wished to place before the Tribunal.

38. The Tribunal has considered all of the information and documents the applicant provided to the Department, the Tribunal, the applicant’s evidence before the Tribunal and his submissions. The Tribunal is not aware of the existence of any other matter relevant to the applicant’s review hearing.

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

    DECISION

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

    Peter Haag
    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.