Thalagalage Don (Migration)

[2024] AATA 2220

Thalagalage Don (Migration) [2024] AATA 2220 (17 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thilina Teshan Thalagalage Don

REPRESENTATIVE:  Mr Robin Chohan (MARN: 2014402)

CASE NUMBER:  2219099

HOME AFFAIRS REFERENCE(S):          BCC2022/3931176

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION:  17 April 2024 at 12:04 pm (NSW time)

DATE OF WRITTEN REASONS:              19 June 2024

PLACE OF DECISION:  Sydney

DECISION:As is recorded in the Outcome document sent to the applicant on 17 April 2024 the Tribunal affirms the decision under review.

Statement made on 19 June 2024 at 10:43am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – mental health issues – maintaining employment in Australia – multiple course cancellations and changes – limited academic progress – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

APPLICATION FOR REVIEW

Introduction

1. This is an application to review a decision of a delegate of the Minister for Home Affairs who, on 19 December 2022, cancelled the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under Sec 116(1)(b) of the Migration Act 1958 (the Act).

2. At the conclusion of the hearing on 17 April 2024 I made an oral decision which affirmed the delegate’s decision but, due to time constraints, did not give oral reasons for it and indicated to the applicant that I would provide in due course.

3. Also on 17 April 2024, the Tribunal served on the applicant an Outcome document which recorded the decision and notified him and the Department of Home Affairs that it would provide written reasons later.

4. More recently the applicant has requested that I provide the reasons foreshadowed at the hearing and in the correspondence.

5. What follows are those reasons.  

   STATEMENT OF REASONS

   Background, findings on early events, and the process which led to the decision under review.   

6. The subject TU-500 visa (the 2021 visa) replaced an earlier one granted to the applicant in 2018 relevantly on the same conditions to enable him to come here and study a package of Information Technology (IT) courses at La Trobe University, courses which included a Bachelor of IT (BIT). The 2018 visa had a cease date of 31 December 2020.

7. He arrived here in February 2018 and completed a short English course before starting the Diploma of IT, but his enrolments in this package were cancelled in October 2018 when he, according to the PRISMS record, ceased studies in that course. He accepted as much in his oral evidence.

8. In February 2019 he enrolled in a package of Hospitality courses at the Australis Institute of Technology and Education (AITE), none of which involved bachelor or higher-level studies, and began the Certificate III in Commercial Cookery (CIII), a course which he went on to complete in early February 2020 before going on to complete the Diploma of Hospitality Management (Diploma) in or about April 2021 after obtaining an extension earlier in that year.

9. The application for the 2021 visa (VA) was filed on 30 December 2020 and was granted on 5 February 2021 to enable him to study a Bachelor of Tourism and Hospitality Management (BTHM) at Academies Australasia Polytechnic (AAC). This enrolment was also cancelled on 20 April 2021 for non-commencement. At about this stage he enrolled in a Certificate IV in Commercial Cookery (CIV) at the Astral Skills Institute of Australia (ASIA) and commenced studies in this course on 10 May of that year.  

10. In this case, for reasons which I will shortly give, the delegate issued two NOICCs, the first on 7 November 2022 and the second on 29 November 2022.

11. The first NOICC recites that the applicant completed the CIV on 5 December 2021, that he had not since been enrolled in a registered course and was thus in breach of condition 8202(2)(a). In his response letter dated 18 November 2022 the applicant informed the delegate that he had not in fact completed that course in December 2021 and had continued with it until April 2022 when he ceased studies because of personal issues arising from the pandemic. He provided to the delegate, among other documents, contemporaneous documentary evidence which revealed as much and went on to say that he had since re-enrolled in the CIV, expected to finish it in about 6 months and provided an extended COE for this course, a document which had been generated on 16 November 2022, two days before the NOICC was issued, and which specified a projected end date for the course of 4 June 2023. He also stated that he completed the CIII and Diploma on time.

12. In the second NOICC the delegate refers to the extended COE for the CIV, in effect accepts that the applicant did not finish this course in December 2021, accepts that he had re-enrolled in it on 16 November 2022 and that he was due to complete it on 4 June 2023, but goes on to recite firstly that, because he had not been enrolled in a registered course of study from 25 April 2022 to 16 November 2022 he was in breach of condition 8202(2)(a) and secondly that, because his enrolment in the Tourism course at AAC had been cancelled on 20 April 2021, and given that he had not since been enrolled in a course at that or a higher level, he was also in breach of condition 8202(2)(b).

13. In his second response letter dated 12 December 2022, the applicant reiterated what he had said in his earlier response, accepts that “in the last few months” he had not complied with his visa requirements, and he provided to the delegate the same documents which he had provided in response to the first NOICC together with a COE for a Graduate Diploma of Management (Learning) at the Strathfield College (Graduate Diploma), a document generated on 5 December 2022 for a course due to start on 26 June 2023 and finish on 23 June 2024.

    An overview of the decision under review

14. In his decision the delegate relied on the 8202(2)(b) breach as affording a ground on which to cancel the subject visa under Sec 116(1)(b) of the Act. He considered in some detail the applicant’s response to the second NOICC, and the documents attached to it, but went on to find that, contrary to what the applicant had asserted, he had no intention to study the Tourism course and that, in any event, he had been in breach of that condition from 20 April 2021 until 5 December 2022, when he enrolled in the Graduate Diploma, and had only done so after having received the second NOICC.

15. As to whether the visa should be cancelled the delegate considered the applicant’s responses against the guidelines set out in the relevant section of the Procedural Instruction (General Cancellation Powers), as he was required to do.

16. Whilst the delegate accepted that the applicant came out here to study, he was not satisfied that he had remained here solely for that purpose in circumstances where the applicant had been in Australia under student visas for almost 5 years and had not progressed beyond the Diploma level. The delegate noted that the applicant had also been in breach of condition 8202(2)(a), that he had studied a trade-based course during 2020 at a time when significant restrictions were in place because of COVID but had ceased studies in April 2021 at a time when those restrictions were relaxed and had only taken steps to re-commence them in November 2022 after the Department issued the first NOICC.

17. The delegate accepted that the cancellation would occasion personal and financial hardship to the applicant, gave it some weight in his favour, but was not satisfied that he had been suffering from depression at any time prior to 8 November 2022, the date on which he was (provisionally) diagnosed with that condition. Nor was he satisfied that the applicant had intended to study at the bachelor level given that he never commenced studies in the BIT and did not take any steps to re-engage with studies at that level until he enrolled in the Graduate Diploma in late 2022.

18. The delegate was thus not satisfied that there were any circumstances beyond the applicant’s control which had led to the breach of condition 8202(2)(b). He pointed out that a bachelor’s course could have been undertaken remotely during COVID whereas a practical, trade-based course such as the CIV would have been more difficult to undertake in that way during the lockdowns.

19. Apart from the question of hardship, most if not all those factors were given significant weight in favour of cancellation.

20. The delegate went on to consider the other relevant and gave to each of them what he regarded to be, on the available evidence, an appropriate weight. Some of these were neutral while others were relatively innocuous.

21. In the result the delegate concluded that the grounds for cancelling the visa outweighed the reasons not to cancel it.

    Procedural and other aspects in the review, including credibility of the applicant

22. The applicant has engaged with the review process by accepting the Tribunal’s invitation to attend the video hearing and by providing a written statement in support of his case prior to the hearing (the 2024 statement). He was able to and did give his oral evidence in English, Sinhalese interpreters were available but were not actively involved. His representative, Mr Robin Chohan, did not attend.  

23. I heard oral evidence from the applicant over a period of about 2 hours, which exceeded the usual allocation for the hearing in the Tribunal of a student cancellation case. The applicant indicated during his evidence that he was relying on his statement and on the other documents which he had provided to the delegate in response to the two NOICCs. He accepted that he had been in breach of the conditions, and that these afforded grounds on which to cancel his visa but reiterated that it should not be cancelled because the breaches had occurred in circumstances beyond his control, more particularly because of mental health issues arising from the pandemic.

24. In essence his review case is that, although he had been depressed and lost enthusiasm for his studies as from early 2022, he was now fully focused on them and wanted to continue with them, that is to re-engage with the CIV and complete the Graduate Diploma and return to Sri Lanka with those qualifications. He accepts that he has been working here as a chef for 2 years, some of which has been on a full-time basis, but did not want to remain here for any longer than was necessary.

25. He also said in the 2024 statement that he was not previously aware of the need to maintain enrolment in a course at the same level as, or higher than, the course for which his visa had been granted.

26. I do not accept his claim that he has been suffering from depression or any other form of mental illness to such an extent that it affected his capacity to engage in productive study in a course such as the CIV, nor do I accept that he was unaware of the need to maintain enrolment in a bachelor’s course or another course of at least equivalent AQF ranking. These claims are either insufficiently supported by credible evidence, are contradicted by admissions made in his oral evidence, are inherently implausible or have been invented to explain his failures to comply with the relevant conditions on which his visa was granted. Making unmeritorious and insubstantial claims of this kind is discreditable and goes a long way towards undermining his review case.

27. In addition, the applicant’s statement contains assertions which are hyperbolic in nature or simply cannot be reconciled with the objective features. For example, his statement that his studies in Australia prior to the onset of COVID were “flawless” is wishful thinking and completely ignores his unexplained failure to continue with the Diploma of IT at La Trobe, while the assertions in his statement that he had “many counselling sessions” and took medication for his depression are quite incompatible with his oral evidence. Other parts of his oral evidence, particularly that given in relation to his work activity and the effect it has had on his studies, involved some prevarication or dissembling on his part.

28. In the result, I am unable to accept his evidence on the critical aspects unless it is corroborated by other more reliable sources, is inherently plausible, is consistent with the objective features, or amounts to an admission against interest.

    Other documentary and oral evidence, additional findings  

29. I have seen a paper file from the Department which contains early correspondence with the applicant, including the Department’s email to him of 7 November 2022 to which was attached the first NOICC, his request for additional time in which to respond to it, a request which the delegate granted, his response including the attached documents, the later NOICC and his response to it, including the additional COE for the Graduate Diploma, and the decision under review.

30. Apart from his academic records, he provided to the delegate medical evidence from a general practitioner, Dr Anoma Bandara. This evidence is in the form of two letters written by her dated 8 November 2022. In one of them Dr Bandara expresses the view that the applicant had been suffering from depression “for the last 8 months” and had started psychotherapy while in the other letter she referred him to a psychologist, Ms Saime Dilek, for treatment. In this letter, Dr Bandara records that the applicant was seen earlier on that date, recites some of the history he had given in point form and queries, rather inconsistently with her earlier view, whether he had “early depression”.

31. I do not consider either of these letters to be credible evidence from a suitably qualified medical practitioner that the applicant had been suffering from depression as from in or about April 2022, or at any other time. Taken together they do not convince me that the stated diagnosis is indeed an appropriate one in that it is not sufficiently supported by the recorded history, nor is it adequately supported by foundational findings or results from recognised clinical tests. Nor am I satisfied that a full history was given to Dr Bandara. Further, the fact that the applicant was being referred to a psychologist for diagnosis and treatment suggests to me that Dr Bandara cannot be taken as expressing a concluded opinion on the applicant’s mental condition, it is a question which she was rightly leaving to a specialist practitioner. In any event, there is no suggestion in either if these letters that the applicant had been incapable of engaging in productive study in the CIV because of these issues.

32. Moreover, he gave oral evidence to the effect that he never saw the psychologist, never had counselling for these issues and never took any medication. This evidence is difficult to reconcile with Dr Bandara’s observation in the letter that the applicant had “started psychotherapy”, unless it is based solely on the fact that he had been referred to a psychologist for treatment on 8 November 2022.

33. Given that the first NOICC was served on the applicant on 7 November 2022, and given there is no acceptable evidence that he had sought any medical attention at any stage for personal health issues prior to 8 November 2022, it is reasonable for me to infer, as I do, that the Bandara letters were likely procured by the applicant as a forensic measure to enhance his case rather than evidence of him having taken a genuine and necessary step to obtain much needed medical assistance.

34. I draw a similar adverse inference in relation to the issuing by ASIA of the extended COE for the CIV on 16 November 2022, a record which (as noted earlier) was generated at the behest of the applicant, two days prior to his response to the first NOICC and after an extensive study gap.

35. In his evidence, written and oral, the applicant accepted that he did not complete the CIV because his enrolments in that course and in the Graduate Diploma were cancelled when his visa was cancelled and the bridging visas, granted to him in early 2023, had no study rights attached to them. He said in the 2024 statement that he applied for study rights after his initial bridging visa had a no study restriction. I accept his evidence on this because the Movements Details confirms it.

36. In his 2024 statement the applicant makes other assertions which cannot be reconciled with the objective features of the case and, to an extent, are inconsistent with his oral evidence. For example, he describes his academic journey as a “roller coaster” but says that he had come to a clear state of mind “after many counselling sessions and medication for depression”, assertions which are quite incompatible with the admissions made in his oral evidence, as is his assertion that he “started psychotherapy” with Ms Dilek. 

37. I do not accept the applicant’s claim, reiterated in his statement, that he was depressed during or after the pandemic, nor do I accept his claim that he was “not thinking straight” because of the effects of the pandemic on his mental status. There are other more plausible explanations for his failure to engage with his studies as from in or about April 2022. The fact that he studied for the Diploma at AITE as from early February 2020 and completed it on time in March 2021, during a period when the pandemic was at its highest in Australia, does not suggest to me that he was struggling to cope with it at that stage.

38. In the statement he says that a “few members of his family”, including his parents, contracted COVID in early 2022 and asserts this led to his depression. I do not accept this claim. Firstly, there is no evidence from any of them to support it. Secondly, he apparently had no difficulty in working as a chef in a commercial kitchen in a hospitality venue situated in the Hunter Valley during 2022. Thirdly, there is no mention in the Bandara letters of his family’s circumstances in Sri Lanka as a factor which may have contributed to the onset of his condition. He purports to explain his deteriorating mental condition by referring to, among other things, the few people he could mingle with but this assertion is impossible to reconcile with his work activities during 2022.

39. The applicant goes on to assert in the 2024 statement, apparently for the first time, that he was not aware of the conditions on which the 2021 visa was granted to him but this assertion has all the hallmarks of recent invention, and the objective features of the case suggest otherwise.

40. By the time the 2021 visa was granted in February of that year he had been in Australia for 3 years under a student visa which relevantly contained the same conditions, having arrived here in early 2018 to study the IT package at La Trobe, a package which included the BIT. The VA was filed in late 2020 to enable him to study another higher-level course, namely the BTHM at AAC, apparently on the advice of an education agent, but according to his statement he came to realise that a vocational program in hospitality would be a more useful and less expensive option. Although he had not yet completed the Diploma of Hospitality Management at AITE at the time the VA was filed the only course it specifies is the bachelor’s course at AAC.  

41. The problem with the applicant’s explanation for enrolling in but not engaging with the BTHM, and switching to a vocational program, is that he had been studying vocational courses in hospitality at AITE since February 2019 and would no doubt have known that such a program has a different emphasis when compared to higher level studies in that field.

42. It thus seems to me that the applicant’s enrolment in the BTHM was likely a considered choice made by the applicant on the advice of his agent probably because it would likely enhance his prospects of obtaining another student visa in circumstances where the earlier one had been granted to enable him to engage in higher level studies in a different field, studies which he did not complete. By late 2020, the applicant was not an inexperienced student, he was born in 1995 and had completed a Diploma of IT in Sri Lanka before he came out here.

1. I also take notice of the fact that the Department has for many years followed an established practice of giving a Visa Grant Notice to a successful applicant for a student visa which outlines the conditions on which the visa has been granted. There is nothing in the evidence to suggest that the applicant did not receive such a Notice when he was granted the initial student visa in early 2018 and I do not accept the implicit assertion in the 2024 statement that he did not receive one in February 2021.

2. None of these circumstances suggest to me that the applicant would not have been aware of the requirements of condition 8202 at the time the 2021 visa was granted to him. His decision not to engage with the BTHM was made with actual knowledge of these requirements. I do not accept his claim to the contrary, his statement that he did not know of the requirement to maintain enrolment in a course of the same AQF ranking is nothing more than a fabrication.

3. Not unimportantly, he makes no such claim in relation to the requirement to maintain enrolment in a registered course of study.

4. There are other assertions in the 2024 statement which cannot be reconciled with the objective features of the case. To assert, as the applicant does, that he was “successfully maintaining his studies and was progressing in achieving (his) study goals” is wishful thinking at best given the extensive and unexplained gap in his studies during 2022, if not earlier, the fact that on his own evidence he made no progress in the CIV during the 18 months he was enrolled in the course, from May 2021 to December 2022, and this despite taking steps to continue with it on-line in February 2022, and his belated steps to extend his enrolment in the course only after he was put on notice that his visa was under threat.

5. His assertion in that statement that prior to the pandemic his studies “were flawless” completely overlooks the cancellation of his enrolments in the IT package in October 2018, events which he does not deal with in his documentary case, but which he accepted as correct in his oral evidence. He has provided no explanation for this in circumstances where that package included a bachelors course in the form of the BIT.  

6. In his oral evidence the applicant admitted that he was employed in a commercial kitchen as a chef on a full-time basis (working 40 hours per week) while staying in the Hunter Valley during the period from November 2021 to October 2022. This evidence is also difficult if not impossible to reconcile with a diagnosis of depression as from April 2022 and, indeed, it goes a long way towards explaining his failure to engage productively with his studies in the CIV during that period.

7. Although the applicant also asserts in the 2024 statement that he is depressed because of the cancellation of his visa he maintains that he has a will to “fight for” the opportunity to complete his studies here, is determined and motivated to obtain the educational qualifications which his parents expect him to acquire, presumably the CIV and Graduate Diploma, and return to Sri Lanka to start the “next chapter in life”.

8. Whilst I accept that he may now want to complete further studies here in the hospitality field he has given no evidence to explain why he now wishes to re-engage with them apart from his professed desire to meet the expectations of his parents, neither of whom have given evidence in support of his case. Nor has he led any evidence to indicate what his occupational goals are let alone any evidence to explain how completion of these courses will assist him to attain them. Enrolling in, and undertaking, a Graduate Diploma might be seen at face value to be a progressive step for him but his belated and unexplained decision to enrol in this course, coming as it did at the heel of the hunt, and after the second NOICC was issued, is a real concern.

9. These matters, when taken in conjunction with the other unsatisfactory features of the applicant’s academic program here, inevitably bring into question his purpose in wanting to remain here. I am quite unable to accept the proposition that he has been here to study, certainly as from April 2021, which is the purpose for which he obtained the student visas in 2018 and 2021. He may have come out here to study but his priorities since April 2021, if not earlier, appear to have taken him in another direction.

10. His conduct in relation to his studies since at least April 2021 suggests to me that his primary purpose has been to remain here for as long as he can and to use the student visa program to achieve that end. Left unexplained as it is, I am quite unwilling in this case to make the necessary allowances to give him another opportunity to complete his studies in circumstances where he has been here since February 2018 and has only a CIII and Diploma in the hospitality field to show for it.

11. As I have pointed out in many other student cases, the pandemic has not, of itself, given an international student a reason not to study in Australia. If an applicant seeks to make out a case that they have been unable to do so because of it, the Tribunal as a rule requires credible evidence, often of a medical nature from a specialist practitioner, to establish that fact. In this case, there is none, nor indeed is there any other credible assertion to that effect. It is not sufficient for an applicant to merely assert, as this one has done, that he was worried and stressed during COVID. It may be that he was, but this did not provide him with an excuse not to effectively engage with his studies, nor did it justify persisting with a vocational program otherwise in breach of the enrolment condition. 

12. The real explanation for the applicant’s languid academic progress during the past few years is more likely to have been his pursuit of other priorities. 

13. There is nothing in the overall circumstances of this case to ameliorate the effects of these extensive and fundamental breaches of condition 8202, nor is there anything in them which could warrant the adoption of a benevolent approach to his situation. The making of false or otherwise insupportable claims does nothing to enhance his case.

14. Each of those factors is to be given significant adverse weight and, when viewed collectively, they militate strongly in favour of the cancellation of his visa.

15. I agree with the delegate’s finding that the applicant will sustain some hardship because of the cancellation but, absent any evidence along these lines from his parents, I do not consider this to be a countervailing factor of any great significance. Certainly, it is not something which can be given preponderant weight in the overall circumstances of this case. In no small way, the applicant has been the author of his own predicament.

16. I also broadly agree with the delegate’s findings in relation to the other factors referred to in his decision and with the weight he attributed to them. Certainly, there is nothing in his 2024 statement, or in his oral evidence, which could put a different complexion on any of these other factors.  

    Summary and conclusion

17. This case involves not one but two extensive breaches of a fundamental condition which attached to the 2021 visa, breaches which the applicant has not adequately explained in circumstances where he well knew of these requirements and, on my findings, chose to ignore them.

18. On the evidence led, such as it is, I am unwilling to make allowances to give him another opportunity to complete vocational studies here in circumstances where I have rejected his multi-faceted claims for not having done so.

19. Nor am I satisfied that the applicant is a genuine temporary entrant in Australia who wants to remain here for legitimate academic reasons. His conduct in relation to his studies here as from April 2021, if not earlier, does not enable me to make any other finding. More particularly, his belated enrolments in the CIV and Graduate Diploma are best seen as strategic measures to enhance his forensic position rather than as genuine steps taken to get his studies back on track.

20. For those reasons I formed the view at the conclusion of the hearing that the decision under review should be affirmed.

    DECISION

21. The decision under review is affirmed.

    Michael Bradford
    Member