Vidanage (Migration)

[2019] AATA 1493

Vidanage (Migration) [2019] AATA 1493 (30 January 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tharindu Dananjaya Vidanage

CASE NUMBER:  1707616

DIBP REFERENCE(S):  BCC2017/445780

MEMBER:Stephen Witts

DATE OF DECISION:  30 January 2019

DATE CORRIGENDUM

SIGNED:27 February 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1.

That the date of the decision ‘30 January 2018’ on the front page of the decision record is to be deleted, and replaced with:

‘30 January 2019’.

Stephen Witts
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tharindu Dananjaya Vidanage

CASE NUMBER:  1707616

HOME AFFAIRS REFERENCE(S):           BCC2017/445780

MEMBER:Stephen Witts

DATE:30 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 30 January 2019 at 10:31am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in a registered course – claims of financial hardship – breach is significant – applicant not put forward a compelling reason to stay in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 359AA
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 4 April 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 applicant, Mr Tharindu Dananjaya Vidanage, is a citizen of Sri Lanka. He was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 30 June 2015.

3. The delegate cancelled the visa on the basis that the applicant had not complied with the condition of his visa, condition 8202(2)(a), as he was not enrolled in a registered course and the grounds for cancelling the visa outweigh 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.

4. The applicant appeared before the Tribunal on 23 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Ms Cassendra Jayabody.

5. The applicant was assisted by the use of an interpreter.

6. 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

7. 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?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course from 20 June 2016 until the date of the delegate’s decision, 4 April 2017.

10. At the hearing, the alleged breach was put to the applicant adopting the procedure of the Act 359AA. The Tribunal reviewed the applicant’s study history with him paying particular regard to the applicant’s PRISMS record. The Tribunal asked the applicant if he wished for some additional time to consider this record prior to having a discussion with the Tribunal.

11. The applicant indicated that he was able to have a discussion with the Tribunal regarding his academic record.

12. According to the applicant’s PRISMS record, which was reviewed with the applicant in accordance with s.359AA, he has been enrolled in the following courses since his arrival here in Australia:

    a)Certificate IV in Patisserie cancelled in 2015

    b)Diploma of Hospitality cancelled in 2016

    c)Bachelor of Hospitality Management cancelled in 2017

    d)Diploma of Leadership and Management cancelled in 2017

13. At the hearing the Tribunal had a discussion with the applicant about his study history here in Australia and specifically his enrolment status between 20 June 2016 and 4 April 2017. The Tribunal explained to the applicant that it was during this period of time that the delegate was contending that the applicant was not enrolled in a registered course of study. The applicant acknowledged that he was not enrolled during this period of time. When this was put to the applicant again that it was apparent that the applicant was not enrolled during this time the applicant responded “I accept that”.

14. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

16. 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’.

17. The Tribunal has considered any submissions provided to the department or to the Tribunal and also the evidence given by the applicant at the hearing and any evidence presented to the Tribunal at the hearing.

18. On 27 March 2017 the delegate wrote to the applicant (delegates file folio 5-7) providing a Notice Of Intention to Consider Cancellation of the applicant’s student visa.

19. On 29 March 2017 the applicant provided the following reply:

    “Last year during my course I did not really think that the course I was doing really suited me but I still attending classes knowing the conditions under my student visa.

    Unfortunately I lost my job and was dismissed from job without notice as the contract is changed and with out a salary of $2,500. I was collecting my money for the next semester which I was supposed to commence from June 2016.

    I was unable to ask money from my mother as my dad has passed away and I had my younger sister attending school then.

    Finally that is when I decided to go to Sri Lanka and asked my mother for money and come back to reapply through Holmesglen because I had no other option.

    I have applied for Holmesglen and am awaiting a reply as they said I could reapply. Once I went and met a student advisor at the International student centre, she provided me with information for the application. I can provide evidence to show that I have applied again to Holmesglen.

    Dear Sir living in here and studying is my goal for a better future. Kindly support me in this regard to this matter.

    With all due respect I do admit that I have disrespected the law of Australia.

    Please kindly help me out with this matter, as this means a lot to me and my family.”

20. It is noted by the Tribunal that in this response the applicant acknowledges that he has “disrespected the law of Australia”.

21. The Tribunal discussed the contents of this statement with the applicant and the applicant confirmed his evidence that he had a two month contract which he lost without salary and that he had financial issues paying for his courses. The Tribunal considered this evidence and asked the applicant to provide more background to this, which is reviewed by the Tribunal below.

    ·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

22. The applicant stated that he arrived in 2016 on a student visa because “I had an idea to start my own business so decided to study in Australia. He further stated that “I wanted to do a cooking course and Management” and that it was “difficult to get that kind of qualification back at home. My father has a restaurant so I wanted to get a qualification and go back to my home country. My mother was paying for my course”.

23. The applicant stated that he finished his school education back in his home country and then studied a baking foundation course for six months with the Prima Company where he obtained a Diploma in Baking.

24. When asked by the Tribunal to explain why he was not able to maintain his enrolment, and his lack of success here as a student as demonstrated by the four cancelled enrolments since his arrival here and no completed courses, the applicant stated that he had been having financial problems as his mother, who had been supporting him financially, was having problems paying for his courses at this time and that he had lost a job where he had been working for a Sri Lankan businessman polishing floors for two months in December 2016 and January 2017 without being paid.

25. When asked by the Tribunal why the applicant, who gave evidence that he returned home at this time, to see his mother to obtain more funds, why he did not stay at home to resolve his financial problems the applicant stated that it was too difficult to go home to Sri Lanka permanently as he was committed to his studies. The applicant also indicated that his father had died. When asked by the Tribunal when his father passed away the applicant stated that his father passed away in November 2014, a period of time prior to the applicant actually coming to Australia on a student visa.

26. When asked further by the Tribunal why the applicant did not return home when it was clear that he was not able to pursue his study successfully here the applicant explained that “I didn’t go back to Sri Lanka because I couldn’t organise to go back and a ticket to go back was too difficult”. The Tribunal was concerned by this evidence as it was clear that the applicant had in fact gone back home and then come back to Australia again and attempted to enrol in other courses. When asked by the Tribunal why he did not pursue his enrolments here in Australia during this time the applicant stated that he wasn’t able to enrol successfully at Holmesglen and had to try other institutions.

27. When asked by the Tribunal as to whether the applicant had a compelling need to remain in Australia the applicant stated that “I couldn’t complete what I wanted to complete in my four years here and my partner is here in a final year of study and I haven’t completed my final part so I want to complete a course and establish myself. My mother had a lot of problems and I’m now getting ready to complete my studies. I have funds and have discussed my problems with universities here. I went to 4 or 5 universities and now I have found one. That is a Diploma of Leadership and Management but my study rights had been cancelled”

28. The applicant stated that he has a partner here in Australia who is originally from Sri Lanka who arrived here in Australia in 2013 and has been on student visas since her arrival here. The applicant stated that his partner was studying for a Bachelor of Nursing and is in her final year although when the Tribunal asked the applicant’s partner what she was currently studying she stated that she was studying a Diploma of Community Services. She also stated that she was financially supporting her partner and that they were married on 12 March 2016 and that she actually arrived in Australia in 2011. The Tribunal is concerned by these discrepancies but does not make any adverse findings against the applicant in regard to this matter.

29. The applicant provided a letter of offer in a Diploma of Leadership and Management at the Melbourne Institute of Vocational Studies which has several intakes over the course of the year and stated that he wanted to study this course.

30. The Tribunal finds that the applicant has not put forward a compelling need to remain in Australia on student visas to study for his baking and/or management degree. The applicant has acknowledged that he could actually have returned home, and could still return home, back to his home country and to his family and do whatever study he needed to do to proceed with his job and career in the future. It is noted by the Tribunal that the applicant studied and completed a Diploma of Baking back in his home country with a baking company in business there.

    ·the extent of compliance with visa conditions

31. There is nothing before the Tribunal to indicate that the applicant has breached other conditions on his visa. The Tribunal expects the visa holder will generally adhere to the conditions of their visa and the Tribunal is mindful of the significance of the breach. As such the Tribunal gives a minimal weight to the fact that there appears to be no additional breaches.

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

32. The Tribunal asked the applicant to provide evidence of the degree of hardship that may be caused should the applicant not be able to stay and study here in Australia on a student visa. The applicant stated that “I have wasted 4 years and I have to get the necessary qualification. My mother had to sell properties to finance this course. No sooner than I get the funds I was searching for a place to get a degree. I want to start my own business. I came here to do studies and then go back. My mum and my brother and sister are expecting me to qualify and go home. Only by selling properties was I able to continue my studies. My mother had problems educating my brother and younger sister. My brother and sister have completed their studies.”

33. The Tribunal recognises that the applicant did have a problem here in Australia with his studies caused by a family financial problem for a period of time and from an employment problem here in Australia after having worked for two months without being paid. The Tribunal recognises that this may have caused the applicant some difficulties at the time. However, the Tribunal finds that these considerations do not outweigh the applicant’s poor study record here in Australia and the significant breach of not being enrolled during this period in favour of not cancelling the applicant’s visa. It is noted by the Tribunal that the applicant has now been here for some years without being able to pursue his enrolments to a conclusion. The Tribunal is not confident that given more time here the applicant will be able to successfully study a registered course and progress academically. It is noted by the Tribunal that the applicant has a baking qualification gained back in his home country.

34. It is also noted by the Tribunal that it is the applicant’s responsibility to ensure that he abides by his visa requirement to ensure he has access to sufficient funds to maintain his stay and study here in Australia.

35. The applicant’s partner gave evidence on the applicant’s behalf. She stated that they had had financial problems so had problems studying for a period of time and she had to support the applicant financially. She also stated that she had had a problem for a period of time maintaining her enrolment due to financial issues.

    ·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

36. The applicant acknowledged that his visa was cancelled due to his lack of enrolment to study during that stated period of time. However the applicant argued that he was unable to study at this time because of temporary financial hardship.

37. Given the circumstances as a whole, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the considerable period of time in which the applicant was not enrolled in a registered course of study. It is also noted that during his time here in Australia the applicant has been unable to successfully complete any of his enrolments. As such, the Tribunal finds that these considerations outweigh any weight given in favour of the applicant in not cancelling the visa.

    ·past and present behaviour of the visa holder towards the department

38. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.

    ·whether there would be consequential cancellations under s.140

39. There are no consequential cancellations under s.140 to consider. It is noted by the Tribunal that the applicant’s partner is here in Australia in her own right with her own student visa.

    ·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

40. It is unlikely that the visa applicant will be detained but rather provided with a time-limited period in which he can leave the country or apply for review of the decision.

    ·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

41. There is nothing before the Tribunal of indicate any international obligations to consider.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

42. There is no relevant consideration in this matter.

    ·any other relevant matters.

43. The applicant gave no other reasons when asked to explain in detail to the Tribunal any other concerns he may have to his general welfare should the visa be cancelled. The Tribunal appreciates an education from Australia may enhance the applicant’s career, however if he does not achieve this, it would not prevent him from studying at some level or gaining employment back in his home country in Sri Lanka particularly given his evidence that he in fact already has a baking qualification gained back in his home country, and the applicant did not give any other evidence to indicate a detrimental effect if the visa was cancelled. The population and economy of Sri Lanka is significant and there are many people in full-time employment without a specific education from Australia.

44. It is noted by the Tribunal that the applicant has a married partner currently living with him here in Australia on student visas. It is also noted that she is from Sri Lanka as well. The applicant gave evidence that she is in the final year of her qualification. In this situation the applicant could return back to his home country for a period of time and wait for his partner to come home or make other arrangements for their home and married life for a period of time while she finishes her course here in Australia. The Tribunal finds that this does not, in itself, present as a compelling need for the applicant to remain here as a student or present sufficient hardship that would convince the Tribunal not to cancel the applicant’s student visa.

45. The Tribunal as a whole has considered the applicant statements however the breach is significant. As a visa holder who is bound by the conditions of his visa, which in this case actually included a requirement to study at higher level, in his evidence the applicant was not able to provide sufficient reasons for the Tribunal to determine that the applicant had a compelling need to remain here as a student in Australia or would actually suffer hardship by having to return back to his home country. The fact that the applicant was having problems paying his enrolment fee at a particular point of time does not adequately explain his study history here in Australia.

1. The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. The Tribunal finds that the breach is significant in the context of a student study period and the fact that he will be well aware of the expectations placed on him. As such, considering the circumstances as outlined by the applicant, the Tribunal concludes that the visa should be cancelled.

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

   DECISION

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

   Stephen Witts
   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.