Wickramanayake (Migration)

[2019] AATA 6756

Wickramanayake (Migration) [2019] AATA 6756 (1 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hashan Wickramanayake

CASE NUMBER:  1821028

HOME AFFAIRS REFERENCE(S):          BCC2018/1006491

MEMBER:Michael Biviano

DATE:1 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 October 2019 at 10:26am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – lengthy period of non-enrolment – passing of family members – mental health condition – financial difficulties – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 12 July 2018 made by a delegate of the Minister for Home Affairs 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 Delegate cancelled the visa on the basis that the Applicant had not been enrolled in a registered course of study from 23 May 2017 and he was not compliant with condition 8202 of his visa.  The Delegate went on to consider whether the factors in favour of cancellation outweighed those against cancellation.  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 14 June 2019 to give evidence and present arguments.  The Tribunal also received oral evidence from Fleshana Wickramanayake, the applicant’s brother and Eddy Kleynhans, psychologist who gave medical evidence on behalf of the applicant. 

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

6. 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?

7. 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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9. The decision record of the Delegate of the Department of Home Affairs dated 12 July 2018, which was provided to the Tribunal by the applicant confirms that the Department cancelled the applicant’s Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa which was granted on 11 February 2015 and the reasons for the cancellation of the visa (Decision Record).

10. Prior to the hearing the applicant submitted to the Tribunal a written statement dated 12 March 2019 together with supporting documents (Statement).

11. The applicant arrived in Australia on 14 February 2015 pursuant to a student visa class TU 573 to study a suite of courses including a Certificate III in Accounting, Certificate IV in Accounting, Diploma of Accounting and a Bachelor of Accounting at Holmesglen Institute.

12. The applicant gave evidence that he completed Certificate III in Accounting in September 2015 but that he did not complete Certificate IV in Accounting as he had only completed two subjects in that course, when he decided to change his course of study from accounting to commercial cookery.  The supporting documents provided with the response to the Notice of Intention to Consider Cancellation of the visa (NOICC)  by the applicant confirms that the applicant studied a Certificate III in Accounts Administration instead of a Certificate III in Accounting.  

13. In 2015 he changed his course of study. The applicant gave evidence that in 2015 he enrolled in Certificate III and Certificate IV in Commercial Cookery which was to commence in 2016.

14. He claims to have studied 10 units in the Certificate III of Commercial Cookery and 10 units in the Certificate IV of Commercial Cookery during 2016 and early 2017 but he cannot remember what happened with the other eight units and he has not been able to provide records about the completed units due to being late with payment of tuition fees to the College and the College not releasing his academic transcript.

15. The applicant in the Statement confirmed that in July 2015 his father suddenly took ill and was diagnosed with liver cirrhosis.  He gave evidence that his father’s health deteriorated quickly and he felt somewhat helpless being in Australia while his father was ill back at home in Sri Lanka.  He decided to stay in Australia to continue with his studies on his parents’ advice, however in June 2016 his father’s health deteriorated and he was told that his father’s days were numbered.  In mid-2016, the applicant returned to Sri Lanka to see and take care of his father but after remaining in Sri Lanka for two weeks his family forced him to return to Melbourne. Shortly thereafter on 17 July 2016, his father passed away. 

16. The applicant then returned home for the funeral. The Statement also confirmed that the applicant’s relationship with his father had never been a close one as his father had been an alcoholic but losing him when he was 22 years of age was a painful experience for him.

17. The applicant gave evidence that at about this time he ceased attending classes, he was also having financial difficulties and he fell behind in payments for his courses resulting in him being unable to sit exams and his enrolment in his courses being cancelled.  The applicant claims that he sought to re-enrol with Holmesglen Institute to complete Certificate III and Certificate IV in Commercial Cookery on the basis that he enter into a repayment plan at $7,500 per semester but the College refused to allow him to enter into such plan.  However the applicant accepts that as at May 2017 his enrolment in the course was cancelled.

18. On 18 June 2018, the Department provided him with an NOICC because he had not been enrolled since 23 May 2017, being a period of nearly 14 months.

19. The applicant by his representative at the time, filed detailed submissions with the Department in response to the NOICC and provided documents supporting the response including statements from the applicant and supporting witnesses and supporting documents in response to the NOICC (Response).

20. The applicant readily conceded in evidence, that he was not enrolled in a registered course of study from 23 May 2017 until the date of the visa cancellation on 12 July 2018.

21. On the evidence before the Tribunal the applicant was not enrolled in a registered course between 23 May 2017 and 12 July 2018. Accordingly the applicant has not complied with condition 8202(2) of his visa. As this was a condition which was attached to his visa, the applicant therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

22. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or to remain in Australia

23. The applicant gave evidence that he came to Australia to study and undertake a suite of courses as discussed above.  However the applicant decided to change his course of study from accounting-based courses to cookery courses.

24. Notwithstanding that the applicant has been in Australia since February 2015, being more than 4½ years he has only completed a Certificate III in Accounts Administration which he completed in September 2015.  The applicant has through the Statement, the Response and  evidence at the hearing claimed that essentially his non-enrolment on 23 May 2017 arose by reason that:

    (i)the death of his father on 16 July 2016 caused him an acute sense of grief, loss and guilt culminating in depression and anxiety that made his life spiral out of control. The applicant claimed in the Statement that his father’s loss had dropped him into a deep sense of depression and emptiness that made him lose interest in life and everything else around him. He claimed he was caught in an uncontrollable cycle of anxiety and stress and disillusionment while during all sensible moments being pushed towards his goal of succeeding with his education;

    (ii)after the death of his father, his brother’s father-in-law became a father figure in his life and helped him. However in June 2017, his ‘stand in father’ passed away. The applicant in the Response claims that he was devastated with the loss of his stand in father;

    (iii)he got into bad habits with bad friends which resulted in him stop attending classes in or about mid-2016 and smoking cannabis every day and not going to work or school resulting in him losing his employment as a kitchenhand in mid-2017 together with him losing his enrolment at Holmesglen Institute; and

    (iv)he did not pay his tuition fees which ultimately led to his enrolment being terminated.  The applicant claims that he sought to re-enrol at Holmesglen Institute to complete Certificate III and Certificate IV in commercial cookery and attempted to negotiate a payment plan, but those negotiations were unsuccessful.

25. It would appear from the applicant’s evidence that whilst he was not enrolled in a course of study from 23 May 2017, he may not have been attending classes from an earlier period.  The period of non-enrolment from 23 May 2017 until the cancellation of the visa on 12 July 2018 is a period of nearly 14 months which is a long period of time not to be studying in Australia which creates doubts as to whether the applicant travelled and stayed in Australia for the purposes of study.

26. The applicant has given evidence that if possible he intends to remain in Australia to complete his Certificate III and Certificate IV in Commercial Cookery. The applicant claims that his mental condition has improved now that he has been living with his brother since the cancellation of the visa and he is able to return to study.

27. Having regard to the applicant’s evidence the Tribunal accepts that the applicant may have travelled to Australia intending to study and that he does intend studying in the future but given his conduct in Australia as set out above and his ability only to complete a Certificate III in Accounts Administration since his arrival in February 2015, the Tribunal gives these matters only marginal weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

28. The applicant gave evidence that he was not enrolled in a course of study from 23 May 2017 until the cancellation of the visa on 12 July 2018 being a period of nearly 14 months which is a long period of time.  Therefore the applicant has not complied with condition 8202(2) for a long period of time.  The non-compliance with condition 8202(2) for such a long period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or finds he was not responsible for the reason of non-enrolment. 

29. The applicant in the Statement, the Response and in evidence gave a number of reasons as to why he was not enrolled during that period of time of almost 14 months, which are set out above. The Tribunal does not find those reasons compelling in circumstances where the applicant was essentially the cause of the non-enrolment by not paying tuition fees and spending his time smoking cannabis and associating with friends instead of studying. 

30. The Tribunal has had the benefit of reading the medical report of Eddy Kleynhans, psychologist, into the applicant’s psychological condition dated 31 May 2019 (Report).

31. Whilst the Tribunal understands that the applicant may have had psychological issues arising from the death of his father as set out in Report, the Tribunal is not satisfied that his psychological issues relating from the death of his father caused him to cease being enrolled in his course of study from 23 May 2017 and prevented him from re-enrolling in a course until the cancellation of the visa.

32. The Report confirmed that the applicant presented with shortcomings in terms of his concentration, retention and memory and attention span, which were caused by anxiety and depressed mood, which adversely impacted his studies in Australia which created the non-enrolment. The Report concludes a diagnosis of a Major Depressive Disorder and Substance Abuse Disorder, because of problems with severe depression and substance abuse due to the death of his father.

33. However the Tribunal notes that the Report was prepared based on consultations with the applicant on 11 December 2018, 31 January 2019, 19 and 27 February 2019, 29 March 2019 and 24 May 2019, which are not contemporaneous with the events or the applicant’s mental state at the time he was not enrolled between 23 May 2017 and 12 July 2018. While the Tribunal accepts the diagnosis at the time of the examination, it has concerns about to what extent it was accurate at the time of the non-enrolment and whether the applicant can be accurately diagnosed as to his condition from 23 May 2017 to 12 July 2018, when he was not examined by Mr Kleynhans.

34. Further the Report does not conclude that the applicant’s condition was so severe that he could not study by reason of his medical condition or could not seek enrolment and deferment of his studies by reason of his psychological condition. Ultimately the applicant continued to study for a period of more than 12 months after the death of his father. Further the Report concluded that the applicant could in the future continue his studies while undertaking treatment to relieve his anxiety. There is no explanation as to why the applicant could not have continued studying while obtaining treatment for his mental condition during 2017 and 2018. The applicant did not present medical evidence or details of treatment during the period from the death of his father to the cancellation of the visa. In light of these matters, the Tribunal does not find the applicant’s psychological condition as being the reason for the applicant not being enrolled for a period of nearly 14 months.

35. The Tribunal finds that reasons for the non-enrolment, which were the responsibility of the applicant, included the non-payment of tuition fees, failure to attend classes and smoking cannabis with his friends.

36. Having regard to the substantial period of non-enrolment in which time the applicant spent it mostly with his friends smoking cannabis, and that he was having difficulties in meeting the tuition fees for his courses and also not attending classes and not studying, and the duration of the breach, the Tribunal gives it some weight towards the visa being cancelled.

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

37. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.

38. The applicant gave evidence that the visa cancellation would cause him a substantial degree of hardship as he would not have completed his studies and he would be unable to obtain a job in Sri Lanka. He claims that his time in Australia studying would have been wasted.

39. Moreover he claims that he is now close with his brother and in a good place and concerned that returning to Sri Lanka would cause him stress and cause his condition to again deteriorate.

40. The applicant gave evidence that if the cancellation was set aside he would finish his Certificate III and Certificate IV in Commercial Cookery, and then probably return to Sri Lanka to get a job.

41. Mr Kleynhans gave evidence at the hearing that he considers that if the applicant were to return home in his current state without treatment there is a risk that he will struggle and his condition will develop into full blown depression.

42. However Mr Kleynhans gave evidence that the applicant had not been receiving formal treatment for his condition. The Tribunal notes that if the applicant’s condition was so severe he would have already received formal treatment for his condition. The applicant also gave evidence that he is in a better place. While there may be a degree of difference of the psychological treatment available between Sri Lanka and Australia, the Tribunal is not satisfied that if the applicant returned home to Sri Lanka, he would not be able to obtain treatment in Sri Lanka for his psychological condition.

43. The Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters which would constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.

44. The Tribunal considers that the above matters give significant weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

45. 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.

46. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

47. Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment.

48. The applicant knew and was aware that by not being enrolled in a registered course of study he would have been in breach of condition 8202 and that his visa may be cancelled.

49. The primary purpose of the applicant under the visa is to undertake a registered course at a level appropriate to his visa and the applicant was not enrolled for a period of nearly 14 months which is a long period to be in breach of the visa.

50. The Tribunal has considered the applicant’s explanations for why he was not enrolled for this long period and therefore in breach of condition 8202(2). The Tribunal does not accept the circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time. The Tribunal gives this matter very substantial weight towards the visa being cancelled.

    Past and present behaviour of the visa holder towards the Department

51. According to the Decision Record, the applicant had responded to the NOICC. Further there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

52. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

    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

1. If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then the applicant will 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. Further pursuant to s.48 of the Act the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of further visas.

2. Further, if the Tribunal decides to affirm the decision to cancel the TU573 student visa under these grounds, then the cancellation will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.

3. However, these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.

4. The applicant gave evidence that if the visa remained cancelled he would return to Sri Lanka and therefore there is no indication that he would become unlawful or be subject to detention.

5. Accordingly the Tribunal gives this factor marginal weight towards the visa not being cancelled.

   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

6. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to Sri Lanka and he did not give any reasons as to why he could not return to Sri Lanka and he has not made any claims that relate to this consideration. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.

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

7. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

   Any other relevant matters

8. The Tribunal is not aware of any other relevant matter in relation to the decision whether the visa ought to be cancelled.

   Conclusion

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

   DECISION

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

    Michael Biviano
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an Foreign Affairs student or the holder of a Subclass 576 (Foreign Affairs 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 Foreign Affairs student or the holder of a Subclass 576 (Foreign Affairs or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.