Thirumuralyraj (Migration)

[2020] AATA 1150

Thirumuralyraj (Migration) [2020] AATA 1150 (4 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ghaveeshiyah Thirumuralyraj

CASE NUMBER:  1931890

HOME AFFAIRS REFERENCE(S):          BCC2019/3263631

MEMBER:Peter Booth

DATE:4 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 04 March 2020 at 8:39am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – enrolment at lower level than visa requirement – non-completion or non-commencement of original courses – family members’ illnesses and applicant’s injury – change of subject area and non-completion and non-commencement of new courses – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 breached condition 8202. 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 2020 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 must maintain enrolment in a registered course that, once completed, will provide a qualification that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b). In the present case, the applicant’s visa was cancelled on the basis that she was not enrolled in a registered course at the same level or higher than the course for which she was granted her student visa.

7. The delegate’s decision dated 1 November 2019 records the reasons for cancellation of the applicant’s student visa. The applicant was granted a visa on 5 July 2017 on the basis that she was to undertake a vocational course in English, a diploma of business and a bachelor of business. The highest confirmation of enrolment in relation to which the visa was granted was a bachelor of business which, once completed, would provide a level 7 (bachelor degree) qualification from the Australian Qualifications Framework (AQF). On 26 September 2017, the applicant’s enrolment in the bachelor course was cancelled by the education provider. On 14 August 2019 the applicant obtained enrolment in a certificate III course in early childhood education and care and a diploma of early childhood education and care. These enrolments are at AQF level 5 (diploma). The delegate found that the applicant had not complied with subclause (2)(b) of condition 8202 as she did not maintain enrolment in a registered course at the same level as, or higher than, the registered course in relation to which the visa was granted. At the hearing of the application, the applicant confirmed the correctness of the delegate’s finding.

8. The Tribunal finds that the requisite condition of the applicant’s visa was breached and that the applicant has not complied with condition 8202(2)(b).

   Consideration of the discretion to cancel the visa

9. 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 procedural instruction, ‘General visa cancellation powers’.

10. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant, and the Departmental guidelines, which cover the following matters.

    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

11. The applicant arrived in Australia on 12 July 2017 intending to study a bachelor of business course. The applicant did not give any evidence as to whether she has a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

12. The applicant confirmed that she was not enrolled in a level 7 registered course of study from 26 September 2017.

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

13. The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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

14. The applicant said that she did not commence the bachelor of business course. Apparently, she completed the diploma of business course although later she stated that she did not commence this course. She said that she did not commence the bachelor level course because “my mother had hypertension, I plan to go back to Sri Lanka, but she said I should stay and study.” She then enrolled in a diploma of information technology in “December 2017”. She did not complete this course. She said “I broke my arm, cannot go to class, this was in 2018, the pain, the course was also hard to me, I spoke to my mother she said to take a different clause. I planned to enrol in childcare, my mother was a teacher, then I went to Sri Lanka, my grandfather was not well”. In answer to a question from the Tribunal she said that she enrolled in the childcare courses in “2019, July”. She added “my mother came here, I was not aware of the condition until I got the cancellation”. In answer to a question from the Tribunal, she said that she did not complete the certificate in early childcare and did not commence the diploma of early childhood education and care. She did not elaborate as to the reasons for this. The applicant confirmed that she has not been enrolled in another bachelor’s level course of study in Australia. It is not clear whether the applicant completed the diploma of business; at one point she said that she had completed it, at another point she said she did not start either the diploma of business or the bachelor of business course. The applicant provided several documents at the hearing, including a letter dated 2 October 2019 titled “letter of explanation”. It is addressed to the Department of Home Affairs. This apparently was in response to a notice of intention to consider cancellation of her student visa. It is broadly consistent with her oral evidence, although significantly more structured and with more detail. As to the decision to change the level of her study she stated “Being an international student in the first time I was not aware about the visa conditions that I must need to enrolled in bachelor properly. However, the email which I received from immigration and border protection on 30 September 2019 was brought to my notice that I cannot be enrolled for a lower-cost to bachelors. Until such time I had no idea that it was unlawful to drop study levels. Because even at University of Latrobe I was enrolled to study a package course which is diploma leading to bachelors. Thus, I sincerely believe that I have not breached any visa conditions intentionally. As per my knowledge I believe I was a genuine student who was continuously studying from day one without any study gaps. However, I agreed that I should have understood the visa conditions prior and should have done everything according to the law (sic)”. The second document was a statement of attainment from Baxter Institute dated 30 May 2019 in respect of the diploma of information technology course, which the applicant did not complete. The third document is a death certificate in respect of the applicant’s father, confirming that he died on 19 May 2016. The fourth document is a diagnosis card from a hospital in relation to the applicant’s mother’s admission to hospital on 24 December 2017 to be “investigated for high blood pressure”. The applicant’s mother was, apparently, discharged on 25 December 2017. The two-page document records medical technical details which are unintelligible to the Tribunal. These documents have been taken into account and given appropriate weight. The applicant was invited to add anything further to her application for review to which she said “I did not know about the condition until I got the cancellation, now I am aware of it”. It appears the only reason advanced by the applicant as to the failure to maintain an enrolment at an appropriate level is that she was unaware of condition 8202. In the Tribunal’s view, it is incumbent on any visa holder to be familiar with and comply with the terms and conditions of the visa. This is a matter well within the control of the applicant. The Tribunal is not satisfied that the reason for the breach of condition was outside the control of the applicant.

15. Accordingly, the Tribunal gives this significant weight in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

16. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Whether there would be consequential cancellations under s.140

17. The Tribunal was provided with no evidence on this point and gives it little weight.

    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

18. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    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

19. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

20. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Any other relevant matters

21. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)    The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)    a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)     must be enrolled in a full time registered course; and

    (b)     subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)    must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)    is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.