Uduwaka De Silva (Migration)

[2019] AATA 2417

Uduwaka De Silva (Migration) [2019] AATA 2417 (2 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Pathum Visal Uduwaka De Silva

CASE NUMBER:  1825870

HOME AFFAIRS REFERENCE(S):     BCC2018/2324483

MEMBERS:Dr Jason Harkess

DATE:2 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 02 July 2019 at 10:53am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – failure to attend schedule hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – entered into a relationship – relationship breakdown – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of Sri Lanka. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 28 August 2018 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 1 February 2017 with an original expiry date of 30 August 2020 providing for approximately 3 years and 7 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia.

4. The delegate cancelled the Applicant’s visa on the basis that the Applicant had breached that condition of the visa which required him to maintain enrolment in a registered course of study that, once completed, would 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 had been granted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. By letter dated 14 June 2019, the Tribunal invited the Applicant to attend a hearing on 2 July 2019 at 10:00 AM in relation to his application for review. The letter was sent by email to the address that was nominated by the Applicant for the purposes of communications with the Tribunal in relation to his application. The Applicant did not respond to the hearing invitation and did not appear at the time and place at which the Applicant was scheduled to appear. In the circumstances, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.[1]

   [1] Section 362B(1A)(a) of the Migration Act 1958 (Cth) permits the Tribunal to proceed to make a decision in such circumstances.

6. For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(b) of the Applicant’s visa requires that the Applicant maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted. The Australian Qualifications Framework (‘AQF’) is the measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course and the depth of achievement and the autonomy required that successful completion of the course represents. AQF Level 1 (Certificate I) has the lowest complexity and AQF Level 10 (Doctoral Degree) has the highest complexity. The AQF is administered by the Department of Education and Training.[2]­

   [2] See generally <>

   As the delegate’s decision record notes, the Applicant’s visa was originally granted on the basis that the Applicant was enrolled in, and would successfully complete, several courses. These included a General English course, a Diploma of Hospitality Management and a Bachelor of Hospitality Management. All courses were to be undertaken by the Applicant at the Holmesglen Institute. The Bachelor’s course sits at highest level of the three aforementioned courses which formed the basis of the Applicant’s student visa grant. Bachelor’s courses sit at AQF Level 7. As the delegate’s decision record further notes, on 29 June 2017 the Applicant’s enrolment in the Bachelor’s course was cancelled by the course provider. On 18 July 2017, the Applicant then enrolled in a Diploma of Hospitality Management, through a different course provider, Pass Global Pty Ltd, though this was cancelled due to the non-commencement of studies on 27 July 2018. Diploma level courses sit at AQF Level 6. On 8 August 2018, the Applicant then enrolled in Certificate III and IV Commercial Cookery courses, a Diploma in Hospitality Management course, and a Bachelor of Business course at Stotts College. The enrolment in the Bachelor’s course at Stotts effectively returned the Applicant’s enrolment status as including an AQF Level 7 course.

2. The delegate’s findings in this respect were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[3] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

   [3] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The PRISMS report indicated that during the period 29 June 2017 to 8 August 2018, the Applicant was in continuous breach of his student visa for not being enrolled in an AQF Level 7 course or higher. That amounts to more than 13 months and represents a significant proportion of the total visa grant period.

4. The Department of Home Affairs wrote to the Applicant by letter dated 31 July 2018, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). The NOICC set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

5. The Applicant responded to the to the NOICC on 9 August 2018. He did not dispute that he had breached condition 8202 of his visa.

6. Accordingly, it seems reasonably clear that the delegate was correct in reaching the conclusion that the Applicant had been in breach of his visa for the period of time identified.

Consideration of the Discretion to Cancel the Visa

1. 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. In the Applicant’s NOICC response, he stated that, after he arrived in Australia, he entered a relationship with a woman who ‘captured [his] heart’. That woman, who the Applicant did not name, was also apparently a student. According to the Applicant, in July 2017 the unnamed woman advised the Applicant to cease his studies at Holmesglen and enrol in courses at the same course provider where she was studying. The Applicant acceded to the request. It seems that the unnamed woman thereafter advised the Applicant which courses he should enrol in and which he should stop. The Applicant followed all her advice, and that apparently explains the situation of his continuous visa breach which eventually came to the attention of the Department. The Applicant further explained that the relationship between the Applicant and the unnamed woman eventually soured. According to the Applicant, she left him after having spent a great deal of his money. He stated that he suffered substantial financial loss. The Applicant further stated he was ‘shell-shocked’ and left ‘in a state of mental paralysis for quite some time … floating in an empty world without making a conscious decision about my priorities.’ He also referred to a latent jaw injury which he had suffered in 2015 ‘resurfacing’ after his relationship breakdown. All of this, according to the Applicant, explains his continuous breach of his student visa.

3. The Tribunal acknowledges the Applicant’s explanation as summarised above. However, his explanation does not amount to a satisfactory excuse for breaching his visa. It is not uncommon for a student visa holder to enter a relationship during the operational period of their visa and their say in Australia. Relationships can be emotionally and financially difficult, for a variety of reasons. However, such difficulties do not constitute a satisfactory excuse to de-prioritise the obligation to comply with essential conditions of the student visa. The visa holder must adapt to such situations while continuing to abide by the law. That means they must continue to remain enrolled and study in a course which is at the same AQF Level as the course that formed the basis of the original visa grant.

4. The Tribunal notes that the Applicant provided no psychological evidence, beyond the written assertions of the Applicant himself, that accounted for his mental state at the time. The Tribunal is therefore unable to form any view as to whether the Applicant was suffering any clinically diagnosable mental health condition during the time he was in continuous breach of his visa. In these circumstances, the Tribunal has formed the view that his personal suffering arising from his relationship breakdown falls into the category of ordinary mental difficulties that people generally suffer on a daily basis in dealing with life’s stressors. In the end, the Applicant’s explanation of the situation effectively amounts to a statement that he was unable to deal with his personal problems while, at the same time, maintaining his legal obligation to comply with an essential condition of his student visa. He chose not to comply with an essential visa condition.

5. The Tribunal has taken into account that, if his visa is cancelled, the Applicant’s hopes of obtaining an Australian qualification will be dashed. He stated that his family in Sri Lanka have expectations of him successfully obtaining an Australian qualification. A decision to cancel his visa will create significant disappointment for him and his family.

6. The Tribunal notes that if the visa is cancelled, the Applicant may become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of visa conditions.

7. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations that would occur by the operation of s 140 of the Act if the Applicant’s visa is cancelled.

8. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements for him to depart Australia. He is a citizen of Sri Lanka and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

9. Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

10. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member