THIYAGARAJAH (Migration)

[2020] AATA 559

THIYAGARAJAH (Migration) [2020] AATA 559 (24 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Niruban THIYAGARAJAH

CASE NUMBER:  1809279

HOME AFFAIRS REFERENCE(S):          BCC2017/4353172

MEMBER:L. Symons

DATE:24 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 24 February 2020 at 2:06pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – gap in studies – non-payment of fees and non-completion of course – mother’s illness and brother’s change of job – dates of mother’s illness do not correlate to gaps in studies – needed to work for money to pay fees – no approach to education provider or department – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(fa)(i), 359AA

CASE
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(fa) on the basis that the applicant was not, or was likely not to be, a genuine student. On 4 April 2018, he applied to the Tribunal for a review of that decision.

3. The applicant appeared before the Tribunal on 11 December 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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 AND FINDINGS

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

8. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a Student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

9. In the present case, the applicant was granted a Student visa by the Department of Immigration (the Department) on 13 December 2016. On 8 March 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled.

10. In his response dated 22 March 2018, the applicant provided details as to why his Student visa should not be cancelled. He stated that the reason there was a gap in his studies was beyond his control. He stated that his mother was very sick in 2017 due to family problems. He stated that she was suffering from depression and anxiety and he was worried. He stated that due to her situation and family issues he was not able to concentrate on his studies during that period. He stated that he was not able to tell her because she was already suffering from depression. He stated that he wanted to return to Sri Lanka and visit her but she told him not to. He stated that he was unable to study or concentrate on anything.

11. The applicant provided the Department with a Medical Certificate dated 2 October 2017 which indicates that Mrs Shiyamala Thiyagarajah was under treatment for mixed anxiety and a depressive disorder, rest was recommended from 2 September 2017 to 29 September 2017 and she was fit to resume work from 30 September 2017. He also submitted a letter from Hannay International College dated 29 January 2018 which indicates that he was enrolled in a Diploma of Hospitality that was offered from 15 January 2018 to 10 January 2020. The delegate cancelled his Student visa on 29 March 2018 on the basis that he is not a genuine student.

12. The applicant gave evidence to the Tribunal that after coming to Australia in 2012 he undertook and completed a Master of Information Technology (IT) degree. He stated that he was then on the pathway to obtaining permanent residence in Australia. He stated that he applied for and obtained a subclass 485 Temporary Graduate visa which was valid for 2 years. He stated that during that time he undertook an internship for 1 year. He stated that he had to pass the PTE English language test in order to apply for permanent residence. He stated that he spent 2 months studying for it but was unable to pass the spelling component of the test. He stated that since then the points test system has changed and he no longer qualifies to apply for permanent residence.

13. The applicant gave evidence that he then applied for a Student visa to study hotel management. He stated that he wanted to get a qualification in hotel management so that he could return to Sri Lanka and take over his father’s business. The Tribunal noted that the Department states that he was not enrolled in a registered course of study from 1 June 2017 to 14 January 2018. He agreed with this. He stated that he last studied in April 2017. When asked what he has been doing since then, he stated that he had the problem with his Student visa and it was cancelled. He stated that he applied to the Tribunal for a review of that decision. He stated that he asked his lawyer whether he could study during the interim period. He stated that he was not sure how long the proceedings before the Tribunal would take. He stated that he was waiting for the hearing.     

14. The applicant stated that he has always been a genuine student. He stated that he always finished every subject. He stated that he never beached his work rights. He stated that he always worked 20 hours a week except when he was on a subclass 485 visa. He stated that he was unable to pass the PTE English examination and was stressing. He stated that his mother was going through PTSD because of his situation here. He stated that his younger brother was a software engineer and worked for 3 years. He stated that his brother then left his job in Sri Lanka and went to India to pursue an acting career. He stated that he did not know what to do. He stated that although he had a degree in IT from Australia he had no work experience in IT in Sri Lanka and would have to take over his father’s business.

15. The records of the Department of Education indicate that the applicant was enrolled in a Master of IT from 23 July 2012 to 27 June 2014 which he completed. He subsequently (obtained a second Student visa on 13 December 2016 and) enrolled in a Diploma of Business from 21 November 2016 to 29 October 2017 and an Advanced Diploma of Business. His enrolment in the Diploma of Business was cancelled on 1 June 2017 for non-payment of fees and his enrolment in the Advanced Diploma of Business was cancelled on 1 June 2017 as well. He then enrolled in a Diploma of Hospitality Management from 15 January 2018 to 10 January 2020. His enrolment in that course was cancelled on 29 June 2018.

16. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that he was not enrolled in a registered course from 1 June 2017 and 14 January 2018 and since 29 June 2018. The Tribunal noted that it may find that he has not studied for a significant period of time, is not a genuine student and has not fulfilled the purpose for which his Student visa was granted. He declined to respond.

17. The records of the Department of Education indicate that the only course the applicant has completed in Australia is a Master of IT which he completed on 27 June 2014. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it may come to the conclusion that he is not a genuine student and his Student visa should be cancelled. He responded that during the interim period he was on a subclass 485 Temporary Graduate visa for 2 years. He stated that he spent 1 year doing professional development and was working full time during that period. He stated that by the time he finished the professional development course he had 3 months left on his subclass 485 Temporary Graduate visa. He stated that he needed $10,000.00 to study and had to work full time and save the money in order to study.    

18. The Tribunal is of the view that this explanation is more convincing than the explanation the applicant gave the Department as to why he was unable to study in 2017. The Medical Certificate he provided the Department indicates that his mother suffered from mixed anxiety and a depressive disorder and was advised by her treating doctor to rest for 28 days between 2 September 2017 and 29 September 2017. His enrolment in the Diploma of Business was cancelled on 1 June 2017 for non-payment of fees. This was 3 months before his mother was advised to rest by her doctor. The Tribunal raised this as an issue with him and noted that it indicated that his enrolment was cancelled because he did not pay the fees and not because he was upset about his mother’s illness and was unable to concentrate on his studies as he claimed. The Tribunal noted that it may find that his failure to study had nothing to do with his mother. 

19. The applicant responded that he did not purposefully fail to pay his fees. He stated that for the first few months he studied business. He stated that it was not relevant and was difficult. He stated that when he realised he was not going to get permanent residence in Australia the only option was to take over the business from his father. He stated that he is now 32 years old and has no prior experience. He stated that he decided to study hotel management. He stated that the university did not have “that slot”. He stated that, during that time, his brother quit his job and went to India to act. He stated that he was talking to his brother and told him to consider their mother.

20. The applicant stated that his mother spent 15 lakhs for him and his brother to study. He stated that he was dealing with his brother. He stated that his mother went for treatment at that time. He stated that he was unable to focus on his studies. When the Tribunal asked him how he was able to focus on his work at that time, he responded that he had to pay rent and feed himself. He stated that he could not ask his mother for money. When asked whether he informed his education provider about the problem he was having (to pay the fees), he responded no. When asked whether he informed the Department of the problems he was having, he responded no. When asked how he was planning to resolve his obligations to his education provider and to the Department , he responded that it was the first time this had happened to him and he did not know that he should contact the Department.  

21. The Tribunal accepts that the applicant came to Australia with the intention of undertaking a Master of IT degree and a plan to apply for permanent residence thereafter. The Tribunal accepts that when he was unable to pass the PTE English language course and the requirements for the visa changed, he realised that he was not going to be able to obtain permanent residence in Australia. The Tribunal accepts that he then applied for and obtained a Student visa in December 2016. To be able to obtain the Student visa he would have had to provide evidence that he was enrolled in a registered course of study in Australia and had the financial resources to pay for his fees and living expenses in Australia.

22. The purpose of the Student visa was not for him to work and save money to pay for his fees. Even after he changed his studies from business to hospitality management and enrolled in a Diploma of Hospitality Management from 15 January 2018 to 10 January 2020, he did not complete these studies. He stated that he stopped studying when his visa was cancelled. His Student visa was cancelled on 29 March 2018 and his enrolment in the Diploma of Hospitality was not cancelled until 29 June 2018. He gave no evidence that he had attempted to obtain study rights on his Bridging visa whilst awaiting the outcome of his application for review before the Tribunal so that he could complete his course.

23. The Tribunal accepts that the applicant’s brother’s decision to leave his job and go to India to pursue an acting career may have been upsetting for his family and his mother in particular. The Tribunal accepts that he may have been upset by his mother’s reaction to this and the impact on her health. The Tribunal is not satisfied that it is an adequate explanation for why he did not undertake any studies after April 2017 as he stated.      

24. On the evidence before it, the Tribunal is satisfied that the applicant is not, or is likely not to be, a genuine student.

    Consideration of the discretion to cancel the visa

25. Having found that the applicant is not a genuine student, 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’.

    Purpose of the applicant’s travel and stay in Australia. Did the applicant have a compelling         need to travel to or remain in Australia?

26. The applicant’s evidence is that he came to Australia for the purpose of obtaining a Master’s degree. He stated that the plan was for him to apply for permanent residence and get a job in IT. He stated that, as he was unable to satisfy the English language requirements, he was unable to obtain permanent residence. He stated that he will have to return to Sri Lanka. He stated that he wants to obtain a qualification in hotel management before he returns to Sri Lanka. When asked why he did not undertake a hospitality management course in the last 2 years, he responded that he was not sure how long it would take for his application for review to be heard so he just waited.    

27. The Tribunal asked the applicant why he did not return to Sri Lanka. He responded that if he returns to Sri Lanka he will have to take over his father’s hotel and has no idea about hotel management. When the Tribunal pointed out that he could learn from his father, he responded that his father took over that business 20 or 30 years ago. He stated that everything has changed now. He stated that if he takes over the business he will want to improve it and needs to understand how the business works. He stated that that is why he stopped studying IT and switched to hotel management.

28. The Tribunal accepts that the applicant’s purpose in coming to Australia was to study. The Tribunal does not accept that that is still his purpose. The Tribunal is not satisfied that he has demonstrated a compelling need to remain in Australia. The Tribunal does not give this consideration any weight in his favour. 

The extent of compliance with visa conditions

1. The applicant was not enrolled in a registered course of study between 1 June 2017 and 14 January 2018. This is a considerable period of time for someone who was here on a Student visa which was subject to various conditions including condition 8202 which required him to be enrolled in a registered course of study. He subsequently enrolled in a Diploma of Hospitality Management from 15 January 2018 to 10 January 2020 but did not seek to pursue those studies and his enrolment in that course was cancelled on 29 June 2018.

2. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his Student visa. The Tribunal does not give this consideration any weight in his favour.   

   Degree of hardship that may be caused       

3. The Tribunal asked the applicant what hardship may be caused to him if his Student visa is cancelled. He responded that his mother sold properties and jewellery and sent him here to have a good life but that did not happen. He stated that he has to show his mother that he can take over his father’s business and look after them. He stated that if he takes over his father’s business and does not do well in that business he cannot look after his parents. He stated that his father is either 65 years or 67 years. He stated that his brother is 2 years younger than him.

4. The Tribunal accepts that the cancellation of the applicant’s Student visa will cause him and his family some hardship. The Tribunal gives this consideration some weight in his favour.   

   Circumstances in which the ground for cancellation arose

5. The circumstances in which the ground for cancellation arose are referred to in paragraphs 10 to 23 above. For the reasons given above, the Tribunal does not accept that the applicant was unable to study because of his mother’s illness. The Tribunal accepts that the reason why his enrolment in the Diploma of Business was cancelled on 1 June 2017 for non-payment of fees was because he was unable to obtain the money from his parents, did not have the money to pay the fees and needed to work and collect the money to pay his fees.

6. The Tribunal does not accept that this is a circumstance beyond the applicant’s control as he obtained the Student visa on the basis that he was able to pay for his studies and living expenses in Australia. If there had been a change in his financial circumstances since he was granted the Student visa which resulted in his inability to fulfil his responsibilities to his education provider and to the Department, the Tribunal would expect him to have returned to Sri Lanka.  

7. Based on the evidence before it, the Tribunal is of the view that the applicant’s disappointment in not being able to obtain permanent residence in Australia and his lack of interest in the Diploma of Business may also have been factors that led to the circumstances in which the ground for cancellation arose. The Tribunal would expect that if he decided, after a few months of study, that he was not interested in studying a Diploma of Business he could have made arrangements with his education provider to transfer him to another course with the same education provider or obtained a letter of release and enrolled in another course with a different education provider.

8. The applicant started studying in Australia in 2012 and should therefore have a good knowledge of the Australian education system and visa requirements. The Tribunal does not accept that the circumstances in which the grounds for cancellation arose were for reasons beyond his control.  

9. The Tribunal does not give this consideration any weight in the applicant’s favour.

   Past and present behaviour of the applicant towards the Department

10. There is no evidence before the Tribunal that the applicant has not co-operated with the Department. The Tribunal gives this consideration some weight in his favour.

    Whether there would be consequential cancellations under s.140 of the Act

11. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in his favour.

    Legal consequences of a decision to cancel the visa

1. If the applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. However, he may be eligible for a Bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalize his affairs in Australia before departing.

2. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means that he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation. These are the intended legal consequences of a decision to cancel a visa. The Tribunal does not give this consideration any weight in his favour.   

   Australia’s international obligations

3. The Tribunal asked the applicant whether there was any reason why he could not return to Sri Lanka and he responded no. He stated that if the Tribunal affirms the decision to cancel his Student visa he will return to Sri Lanka.

4. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in his favour.

   Any other relevant matter

5. The Tribunal asked the applicant whether there was any other reason why his Student visa should not be cancelled. He responded yes and stated that he has always been a genuine student. He stated that he never breached any visa conditions. He stated that he will make sure that he finishes the degree on time.

6. The Tribunal does not find this evidence to be convincing and does not accept it. He enrolled in a Diploma of Business between 21 November 2016 and 29 October 2017. He did not pay his fees and did not complete the course on time. He also breached condition 8202 of his Student visa by not being enrolled in a registered course of study between 1 June 2017 and 14 January 2018. The Tribunal does not give this consideration any weight in his favour.

CONCLUSION

1. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   L. Symons
   Member

   
   

   ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

   …

   (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

   (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

   (a)because of the conduct of the holder; or

   (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

   (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

   (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.