WARNAKULASURIYA FERNANDO (Migration)

[2017] AATA 146

WARNAKULASURIYA FERNANDO (Migration) [2017] AATA 146 (24 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RAMIL DILSHAN WARNAKULASURIYA FERNANDO

CASE NUMBER:  1608142

DIBP REFERENCE(S):  BCC2016/971517

MEMBER:Magda Wysocka

DATE:24 January 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 24 January 2017 at 4:22pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Maintaining enrolment in a registered course – Education provider’s advice on course cancellation – Change of course from IT to management – Family financial difficulties – Genuine intention to recommence studies

Legislation
Migration Act 1958, ss 116(1)(b), 140
Migration Regulations 1994, Schedule 8, Condition 8202

Cases
Molla v Minister [2016] FCCA 721

statement of decision and reasons

application for review

1. 1. This is an application for review of a decision dated 30 May 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. 2.       The delegate cancelled the visa on the basis that a ground for cancellation arose as the delegate found that the applicant breached condition 8202 attached to his student visa.  The applicant provided a copy of the delegate’s decision to the tribunal. 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. 3.       The applicant appeared before the Tribunal on 24 January 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The applicant was represented in relation to the review by his registered migration agent.

4. 4.       For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Consideration of Claims and evidence

5. 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.

6. 6.       The tribunal has before it numerous documents that were provided by the applicant and his representative prior to the tribunal hearing. These documents include:

   1. a.        Copies of the applicant’s confirmations of enrolment (CoEs) for IT courses which he was enrolled in when he originally came to Australia;
   2. b.        Certificates and statements of results for the applicant’s Diploma (Nov 2014- May 2015) and Advance Diploma of Management (May 2015- Nov 2015);
   3. c.        A CoE for a Bachelor of Business course at Cambridge International College dated 16 May 2016 and evidence of payment of $2,250 of tuition fees on 16 May 2016;
   4. d.        Copies of email correspondence between the department and Cambridge International College;
   5. e.        Email correspondence between the applicant and his education agent;
   6. f.         Written statements from the applicant’s father.

g.     7.       The tribunal has also been provided with submissions from the applicant’s representative. The tribunal refers to the submissions below, where relevant.

Did the applicant comply with Condition 8202?

a.     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).

a.     9.       In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The delegate’s decision identified two periods when the applicant was not enrolled in a registered course. The first period is between 2 November 2015 and 16 May 2016.

b.     10.      The applicant concedes that his enrolment ceased in November 2015 until 16 May 2016 but he disputes the date on which it ceased. It has been submitted that because he was awarded his Advanced Diploma certificate on 10 November 2015, this is the date on which he should be taken to have ceased his studies. The tribunal rejects this argument. PRISMS records (as set out in the delegate’s decision provided by the applicant) and documents regarding his Advanced Diploma submitted by the applicant to the tribunal clearly indicate that he had completed his course on 1 November 2015 and that his enrolment ceased on 2 November 2015.

c.     11.      The second period of time identified in the delegate’s decision during which the applicant was not enrolled in a registered course was from 18 May 2016 until 30 May 2016, the day his student visa was cancelled.

d.     12.      The applicant has advised that he enrolled in a Bachelor of Business Administration on 16 May 2016 (CoE provided) with the assistance of an education agent and that he was completely unaware that his enrolment had been cancelled until after receiving the department’s decision. Copies of correspondence between the department and his course provider were provided to the tribunal, in which the course provider advised the department that they had sent the applicant a revised written agreement to take into account credits granted, and were waiting for the return of the signed agreement before issuing a revised CoE.

e.     13.      The tribunal is not persuaded by arguments made that the CoE was not cancelled because there was reference in email correspondence to issuing a ‘revised’ CoE. Submissions have also been made indicating that the course provider did not appear to comply with the National Code by apparently not notifying the applicant that his enrolment would be cancelled and depriving him of the opportunity to appeal the decision and obtain automatic continuation of his enrolment and referred to the case of Molla v Minister [2016] FCCA 721 (20 May 2016).  However, the evidence before the tribunal indicates that, whether the applicant was aware of it or not, his enrolment was cancelled on 18 May 2016 and not re-instated at the time that the department cancelled his visa. The tribunal considers the applicant’s evidence regarding his lack of awareness of the cancellation of his CoE further below.

f.     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

a.     15.      Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

b.     16.      There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.

a.     17.      The applicant gave evidence that he entered Australia in February 2014 for the purpose of studying up to Bachelor level. His original study plan was to complete diploma and bachelor degrees in IT, evidence of which has been provided. According to the applicant, after several months of studies, he became unsatisfied with the quality of the course, which was not what he had expected when the course had been proposed to him in Sri Lanka. He realised that he was in a good position to start a business in Sri Lanka and decided to embark on management studies, commencing a diploma in management in November 2014.

b.     18.      The applicant stated on several occasions during the hearing that it was his family’s expectation that he bachelor studies in Australia.  The tribunal accepts that the applicant came to Australia to complete his studies up to bachelor level. It gives some weight to this in favour of not cancelling the applicant’s visa. It acknowledges that students can change their course of study for legitimate reasons and gives no weight to the applicant’s change of study from IT to management/business. 

The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

a.     19.      The applicant has provided consistent evidence regarding the circumstances that led him to cease his enrolment in November 2015 and has provided supporting evidence in the form of two statements from his father.

b.     20.      According to that evidence, the applicant’s father, who has worked in Italy for several years, and was the sole source of income for the applicant, his mother and another sibling (a second sibling works in Italy) unexpectedly lost his factory job due to restructuring in September 2015. This meant that he was unable to send funds to the applicant to cover his costs, including course fees as the family in Sri Lanka was trying to ‘get back on [its] feet again’. The applicant was therefore unable to enroll in his bachelor studies course.

c.     21.      The evidence provided by the applicant is that he had no other source of finances to pay for his course fees and was entirely reliant on his father. His father subsequently returned to Sri Lanka and started a coconut farm and coconut fibre mill. The evidence provided to the tribunal indicates that business gradually picked up and that by approximately April 2016, the family was financially stable again. The applicant claims that by around March 2016 his father started sending him money but only for living expenses; prior to that he had borrowed from friends after coming down to Melbourne.

d.     22.      The tribunal discussed with the applicant the timing of his enrolment in the Bachelor of Business course on 16 May 2016, after the department issued its notice of intention to consider cancelling his visa. It was the applicant’s evidence that his father’s ability to send him money for course fees in April 2016 was what led him to re-enroll in May 2016.

e.     23.      The applicant claims that he never requested to receive credits towards his bachelor studies, and as noted above, the applicant claims that he was never notified that his bachelor enrolment had been cancelled, nor was he informed of a written agreement he had to sign to receive a revised CoE. He has provided emails between himself and his education agent, including one dated 30 May 2016 referring to the course provider’s orientation week, which does indicate that both he and the agent appeared unaware that there was any problem with his CoE or that anything else was required of him. Also provided was evidence that the applicant had paid $2250 of his tuition fee when he obtained his CoE on 16 May 2016. It was argued by his representative that this payment indicated the applicant was serious about enrolling in studies at this time.

f.     24.      The evidence provided by the applicant does suggest that he was indeed seriously intending to recommence study and appeared unaware that his CoE had been cancelled or that he was expected to sign a written agreement before a new CoE could be issued. The tribunal gives weight to these circumstances in favour of not cancelling the applicant’s visa. Given evidence before it of the applicant’s actions (including payment of a significant amount of money), the tribunal is of the view that, had the applicant been aware of his CoE having been cancelled on 18 May 2016, he would have taken steps to rectify this.

g.     25.      The tribunal accepts on the evidence before it the circumstances described by the applicant that led his enrolment to cease in November 2015 and gives weight to these circumstances.

The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.

a.     26.      The applicant was not enrolled in a registered course for a period of six months from November 2015 to May 2016. The tribunal considers this to be significant, given the centrality of enrolment in a course to the student visa. The applicant was also not enrolled in a registered course for a period of eleven days in May 2016. The tribunal does not consider this to be significant.

The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.

a.     27.      The applicant became emotional when discussing the shame it would bring upon himself and his family if he did not return to Sri Lanka with a bachelor degree. This is reiterated in his father’s statement of 13 October 2016. The applicant also referred to his father having sacrificed many things so that the applicant could complete an overseas education, whereas his siblings were not sent for education overseas.

b.     28.      The tribunal accepts that the applicant and to an extent his family members may feel a sense of shame if his student visa was cancelled and that such an outcome would be personally upsetting to the applicant. It gives some weight to this. While the tribunal accepts that financing the applicant’s education in Australia would have required sacrifices from the applicant’s parents, it is not satisfied that the cancellation of the applicant’s visa would lead to hardship in this respect.

The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).

a.     29.      The applicant provided a response to the department’s notice. There is no evidence before the tribunal that the applicant has not been truthful or cooperative in his dealings with the department.

Whether there are mandatory legal consequences to a cancellation decision.

a.     30.      If the applicant’s visa would be cancelled, he may be prohibited from applying for further Australian temporary visas for three years. The applicant may also be subject to detention if he does not engage with the department after visa cancellation and voluntary depart Australia.  The tribunal gives some weight to these consequences.

Other matters.

a.     31. The tribunal has considered whether there are persons in Australia whose visas would, or may, be cancelled under s140, whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation and whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations but does not find these considerations to be relevant.

b.     32.      The applicant’s representative submitted that the applicant was of a young age when he arrive in Australia, and still is. The tribunal has noted this.

c.     33.      While the tribunal considers the period during which the applicant was not enrolled in a registered course (six months) to be significant, it has taken into account and given weight to the circumstances in which the breach of condition 8202 took place, namely his father’s unexpected loss of income, which led to the applicant being unable to pay course fees for his intended bachelor course. The tribunal notes that it is the applicant’s responsibility to have sufficient funds to pay for his course fees. However, the tribunal accepts that the applicant was and continues to be reliant on his father for his costs and the evidence before it also indicates that the applicant’s father set out trying to rectify the situation as soon as possible, leading the applicant to be able to enrol in his intended bachelor course in May 2016. As noted above, the tribunal accepts the applicant’s evidence regarding being unaware that his enrolment was cancelled two days later and has given weight to the circumstances surrounding this.

d.     34.      According to the applicant’s evidence and written evidence from his father, the father’s coconut business is financially stable and the applicant’s father is sufficiently able to finance the applicant’s fees and expenses. The evidence does not suggest that the situation in which the applicant found himself in at the end of 2015 is likely to repeat. The applicant has provided evidence of successfully completing previous courses and has demonstrated a desire to finish his bachelor studies in the same field before returning to Sri Lanka.

e.     35.      Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

decision

a.     36.      The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Magda Wysocka
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.