Sinhapruthivi Arachchillage (Migration)

[2019] AATA 1064

Sinhapruthivi Arachchillage (Migration) [2019] AATA 1064 (7 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rusira Owadene Keerthisinghe Sinhapruthivi Arachchillage

CASE NUMBER:  1712667

HOME AFFAIRS REFERENCE(S):           BCC2017/1343019

MEMBER:Margie Bourke

DATE:7 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 07 March 2019 at 3:27pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – intend to enrol in and complete a one-year masters degree – psychological and emotional hardship for applicant and her partner – impact on partner’s education and employment prospect – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
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 8 June 2017 made by a delegate of the Minister for Immigration and Border Protection 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 was not enrolled in a registered course of study from 31 December 2016, and there were grounds for cancellation of the visa. The delegate was satisfied the grounds for cancelling the Visa outweighed the grounds for not cancelling the 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.

3. The applicant appeared before the Tribunal on 4 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Mr Rajapaksha Pathirannehelage Don.  

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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?

7. 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).

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

9. Based on the information contained in the written submissions from the applicant’s representative and the oral evidence at the hearing, I am satisfied that the applicant was not enrolled in a registered course of study from 31 December 2016. Therefore on the evidence before the Tribunal, the applicant was not enrolled in a registered course, at the relevant time.  Accordingly, the applicant has not complied with condition 8202(2).

10. The Tribunal is therefore satisfied that the applicant has not complied with the condition of the visa, and therefore the visa can be cancelled pursuant to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

11. 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’.

12. The applicant and her partner came to Australia as the holder of student visas in 2009. The applicant studied engineering for three years but found this course too difficult. The applicant then transferred to a four-year Education degree. On the advice of university career guidance counsellors, the applicant decided to transfer to a business human resources management degree of three years, followed by a one-year Masters degree in Education. The purpose of the applicant’s study was to attain an education and business management degree that would assist her to establish an educational facility for children upon her return home. The applicant has completed the three-year business human resources management degree. The applicant has not commenced the one-year masters degree in education. There was a period of time between the completion of the business management degree before the applicant enrolled in the masters degree, where the applicant was not enrolled in a registered course of study. The evidence before me is that the applicant intended to enrol in the masters degree, had made the enquiries about when it commenced and when she needed to enrol, and the purpose of her student visa was to complete her studies, including the masters degree in education. Based on the evidence before me the applicant wishes to enrol in and complete a one-year masters education degree to complete the purpose of her travel and stay in Australia. I give this some weight in favour of not cancelling the applicant’s visa.

13. The applicant gave evidence which is consistent with information she has provided to the Department, and written information provided to the Tribunal. The evidence provided by the applicant was that she completed her degree in December 2016, and requested that her graduation ceremony be postponed due to her father’s back injury and scheduled surgery. The applicant stated that she did not make any enquiries about the time in which she was required to enrol in the masters degree in education to continue to comply with the conditions of her visa, and states she assumed that she would be able to enrol after she received her degree certificate at the graduation ceremony to comply with the student visa conditions. The applicant completed the business management degree in December 2016, and the graduation ceremony was held on 31 March 2017. The applicant received a notice dated 15 May 2017 advising of the intention to consider cancelling her visa.

14. The applicant states she had not applied to enrolled in the masters degree in education by that date. The applicant states that she had found out that as the graduation ceremony had been held on 31 March 2017, after the commencement of the university first semester, she could not enrol in the masters degree for the first semester, but had to enrol in the masters degree commencing the second semester. The masters degree would commence in the second semester commencing August 2017, as she had not applied for the first semester in that year. The applicant stated applications for enrolments did not need to made until July or August.  The non-compliance with her visa condition, that the applicant be enrolled in a registered course of study, occurred because the applicant did not enrolled in a registered course of study for the first semester in 2017. The non-compliance with her visa condition occurred because the applicant deferred her graduation, and did not make proper enquiries as to any requirement to continue to be enrolled in a registered course of study. There is no other evidence that the applicant has not complied with conditions of her student visa or her bridging visa. I give the fact that there is no other evidence of non-compliance wait in favour of not cancelling the applicant’s visa.

15. I have considered the medical evidence provided in this matter. Including the letter from the mental health clinician from Swinburn University in relation to the applicant’s partner and the psychological report in relation to the applicant. I accept that both the applicant and her partner have experienced considerable distress and have both been diagnosed with mental health conditions, which are directly related to the cancellation of the applicant’s visa. I accept, based on the written evidence of the conditional employment offer and the oral evidence of the witness, that the applicant’s partner has been offered employment in Dubai, conditional upon him completing his Master’s degree in IT. I accept that after the applicant’s visa was cancelled the applicant’s partner was so severely affected by the situation that the distress affected his studies and he failed three units. I accept that he expected to complete his master’s degree in March of this year, but now requires an additional 12 months to complete that degree. I accept that the applicant and her partner do not have other family members in Australia and rely on each other for emotional support. I have considered the statutory declarations and financial documents and am satisfied that the applicant and her partner reside together and provide each other with ongoing support. I have considered their oral evidence at the hearing. I am satisfied based on the evidence before me, particularly the medical evidence, that both the applicant and her partner would suffer serious psychological and emotional hardship if the applicant’s visa is cancelled. Further I accept that there is potential to affect the capacity of the applicant’s partner to complete his master’s degree and obtain his position of employment if the applicant’s visa is cancelled. I give the hardship that would be suffered and experienced by the applicant and her partner significant weight in favour of not cancelling the applicant’s visa.

16. I set out in paragraphs 13 and 14 above some of the circumstances in which the ground of the cancellation arose. I accept that the applicant had completed her degree in business human resources management in December 2016. I accept that the applicant arranged to postpone her graduation, to enable her father who had back surgery scheduled, to attend the graduation. I have considered the applicant’s evidence that she did not make enquiries about being able to enrolled in her Masters in the first semester because she had postponed her graduation. I accept the applicant’s evidence that she worked part-time during the first half of 2017. I accept her evidence that she had made enquiries about the masters degree commencing on the second semester, and was aware of when she had to enrolled by to commence that course. I accept the applicant did not consider that her visa would not continue because she was not registered or enrolled in the masters degree, within 28 days of completing the business management degree. Whilst I accept the applicant’s explanation, I do note that it is the applicant’s responsibility to be aware of the conditions of the visa, and that she was required to be enrolled in a registered course of study. I give the evidence of the circumstances in which the ground of cancellation arose weight in favour of cancelling the applicant’s visa.

17. There is no evidence before me is that there has been any issue in relation to applicant’s behaviour to the Department. I give this some weight in favour of not cancelling the applicant’s visa.

18. There is no evidence that there would be any consequential cancellations under s.140 of the Act. I give this no weight in my considerations.

19. I have considered whether there would be any legal consequences as a result of the cancellation of the laser the applicant would face possible detention prior to any deportation. The applicant would be limited in future visa applications. I give this some weight in favour of not cancelling the applicant’s visa.

20. There are no international obligations for Australia affected by the cancellation of the applicant’s visa. I give this no weight in my considerations.

21. I have considered all the evidence available to me and considered all the information. Overall I consider that the grounds for not cancelling the visa outweigh the other considerations.

22. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Margie Bourke
    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.