Wijesuriya (Migration)

[2019] AATA 4115

Wijesuriya (Migration) [2019] AATA 4115 (3 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nuwani Dananga Wijesuriya

CASE NUMBER:  1819127

HOME AFFAIRS REFERENCE(S):           BCC2018/172527

MEMBER:Michael Biviano

DATE:3 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 03 September 2019 at 2:05pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – substantial period of non-enrolment – degree of hardship – circumstances giving rise to non-enrolment – relationship breakdown with fiancé – sister’s medical condition – mental health issues – decision under review set aside

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 25 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that she had not been enrolled in a registered course of study from 15 June 2017 and she was not compliant with condition 8202 of her visa. The delegate went on to consider 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 5 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Chathuri Kiara Wijesuriya, her sister (Chathuri). 

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

5. 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

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)(a)

   ·     has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c), and

   ·     has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).

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 25 June 2018, which was provided to the Tribunal by the applicant, confirms that the department cancelled the Student (Class TU Subclass 500) visa which was granted on 26 July 2016 (decision record).

10. Prior to the hearing on 5 June 2019 and at the hearing the applicant submitted the following documents in support of her application:-

    a.Applicant’s Statement dated 1 June 2019 (Statement), with supporting documents enclosed including but not limited to her visa documents, education qualifications, communications and enrolment with Swinburne University of Technology (Swinburne), correspondence with Swinburne and Melbourne Polytechnic regarding potential offers, family financial status, evidence of university payments, her medical documents, car accident documents and Chathuri’s medical documents; and

    b.Psychological assessment of Randolph Monteiro, psychologist dated 4 June 2019

11. The applicant arrived in Australia in October 2012, after obtaining an initial student visa to study a suite of courses including foundation of engineering at Unilink leading to a Bachelor of Civil Engineering at Swinburne.

12. Prior to coming to Australia the applicant completed her General Certificate of Education (Ordinary Level) Examination in Sri Lanka on 13 March 2012. She also completed the University Foundation Program (Science) at the Australian College of Business and Technology, Sri Lanka on 25 February 2012. She then came to Australia to study, joining her brother who had studied Civil Engineering at RMIT and is now serving with the RAAF.

13. During 2012 and 2013, she studied and completed a Diploma of Engineering at Unilink.

14. In 2014 the applicant commenced studying a Bachelor of Engineering (Civil)(Honours) degree at Swinburne. The completion of the diploma provided her with exemptions from studying seven subjects in the bachelor’s degree.

15. The applicant by her evidence and also having regard to her academic transcript encountered difficulties with her studies.

16. The applicant’s results between 2014 and 2016 while studying the bachelor’s degrees were as follows:-

    a.In 2014, she passed one of four subjects studied in semester one, and nil of four subjects studied in semester two;

    b.In 2015, she passed one of four subjects studied in semester one, and two of four subjects studied in semester two; and

    c.In 2016, she passed two of four subjects studied in semester one and received an exemption for one more subject, thereby failing only one subject, and she passed three of four subjects studied in semester two.

17. The applicant in her evidence confirmed that she was required to extend her course, to pass the necessary subjects to complete the degree and she extended the expiry of her enrolment from November 2016 to November 2018 to enable her to complete her bachelor’s degree.

18. The applicant gave evidence that she had not told her parents about failing subjects in the course and lied to them about completing the degree, the reasons she was staying on in Australia and when she was to graduate. Prior to the expiration of 2016, the applicant’s tuition fees for her course had been paid by her parents and believing that she had completed her course they did not advance to her any further tuition fees.

19. She claims that she had lied to her parents about her academic performance because she was embarrassed, she did not want to seem like a failure and she did not wish to disappoint them. While the Tribunal understands the applicant’s motivations for her conduct, it does not excuse her conduct.

20. In 2017 the applicant was enrolled to complete the Bachelor of Civil Engineering at Swinburne. She paid tuition fees of $10,478 of a total of $15,000 that she was required to pay for the first semester in that course. She paid that amount having taken up a job at Hungry Jacks at the airport, borrowed money from friends and took an advance of $7,000 from credit cards she had obtained.

21. The applicant was able to attend classes but she received demands for payment from the university for the shortfall in tuition fees. She had discussions with the International Students Association and she told them she was going through a rough patch and asked if she could withdraw from one subject which would have reduced the cost of the course, but that was not successful. She told the university she was going through a difficult time both financially and emotionally due to the break up with her fiancé.  

22. The applicant confirms that she was given notice a few days before the exams in June 2017, that her enrolment at Swinburne had been cancelled, because of non-payment of tuition fees.

23. The applicant conceded in evidence that she was not enrolled in a registered course immediately from 15 June 2017 up until her visa was cancelled on 25 June 2018.

24. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between 15 June 2017 and 25 June 2018. Accordingly, the applicant has not complied with condition 8202(2). As this was a condition which was attached to her visa, the applicant has therefore breached a condition of her visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

25. 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 the 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 to or remain in Australia

26. The applicant gave evidence that she came to Australia to study and undertake a suite of courses including a diploma of engineering and a bachelor degree of engineering.

27. On the evidence before the Tribunal, the applicant has been in Australia since October 2012, being nearly seven years and she has completed the diploma of engineering and completed nine subjects of her bachelor’s degree.

28. The applicant gave evidence that her enrolment in her course of study ceased on 15 June 2017, when she had been unable to pay her tuition fees for her studies at Swinburne. The applicant did not re-enrol and ceased studies by reason that:-

    a.She was severely stressed by her situation with her studies and failing subjects in her course;

    b.She was emotionally distressed by her break up with her fiancé which occurred in January 2017; and

    c.She was emotionally distressed by her sister, whom she was looking after and was also studying in Melbourne, being hospitalised in 2017 and 2018 due to severe pain and complications with the base of her leg where it was amputated which resulted in medical treatment and surgeries to alleviate her pain.

29. The applicant gave evidence she was not undertaking any study in a course of study, from when she ceased her enrolment at Swinburne from 15 June 2017 up until her visa was cancelled on 25 June 2018, which is just over one year. The Tribunal notes that this is a long period of time not to be studying or enrolled in a course of study in Australia, while holding a student visa and which creates some doubt as to whether the applicant stayed in Australia for the purpose of study.

30. The applicant has given evidence that if possible she intends to remain in Australia to complete her studies and complete a Bachelor of Civil Engineering at either Swinburne or Melbourne Polytechnic. Upon completing the bachelor’s degree she wishes to return to Sri Lanka and work as a civil engineer, involved in road construction. She gave evidence that there is a shortage of civil engineers in Sri Lanka. The applicant tendered a correspondence with both Melbourne Polytechnic and Swinburne regarding the prospect of being enrolled in the Bachelor of Civil Engineering.

31. Having regard to the applicant’s evidence, the Tribunal accepts that the applicant has travelled to Australia intending to study, studied in Australia and she intends studying in Australia in the future. However given her conduct in Australia between June 2017 and June 2018, in not being enrolled in a course of study, the Tribunal gives this little weight towards the visa not being cancelled. 

    The extent of compliance with visa conditions

32. The applicant gave evidence that she was not enrolled in a course of study from 15 June 2017, until the cancellation of the visa on 25 June 2018 being a period of 12 months which is a substantial period of time. Therefore, the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for such a substantial duration of time may weigh towards the cancelling of the visa unless the Tribunal accepts her reasons for non-enrolment.

33. The applicant in evidence gave a number of reasons why she was not enrolled and those reasons are set out below and referred to above. While the Tribunal accepts that she was not enrolled because she could not afford to pay her tuition fees, which was the applicant’s responsibility, it does also accept that she was very stressed and suffering severe anxiety and depression, by reason of the matters with her break up in her relationship with her fiancé, her sister’s medical problems and her academic results which contributed to her not being enrolled in a course of study for a period of 12 months.

34. The applicant ultimately accepted in evidence that she was responsible for not being enrolled and the substantial period of non-enrolment and that during this time she looked after and cared for her sister but she predominately stayed at home. By reason of the duration of the breach and her acceptance of the responsibility for non-enrolment, but also having regard to her mental state and her circumstances, the Tribunal gives this little weight towards the visa being cancelled.

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

35. The Tribunal asked the applicant if she or other family members would suffer hardship if the visa was cancelled. The applicant gave evidence that the visa cancellation would cause her substantial hardship as she could not complete her bachelor’s degree in civil engineering in Australia and take care of her sister, Chathuri who is studying a Bachelor of Accounting at Latrobe University. Both the applicant and Chathuri gave evidence that Chathuri, who is an amputee who is wheelchair bound, lives with the applicant and requires her assistance with cleaning, home duties, cooking, transportation and taking care of her. The cancellation of the visa would cause Chathuri an enormous degree of hardship with her living arrangements with no one to look after her in Australia.

36. Further the applicant gave evidence that if the visa was cancelled and she returned to Sri Lanka, it would separate her from her siblings who are all in Australia. Further she gave evidence that if her visa was cancelled she would return to Sri Lanka and complete a degree in civil engineering, but she was unsure whether she would receive credits for the subjects completed in Australia and there was a prospect she may be required to recommence her studies from the beginning.

37. The Tribunal considers that the above matters give substantial weight towards the visa not being cancelled.

    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.

38. 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.

39. The applicant gave evidence as to the circumstances that lead to the cancellation of the visa.

40. Firstly she gave evidence as set out above that she was unable to pay the entire amount of the tuition fees for the first semester in 2017. She paid $10,478, of a total of $15,000 and failed to pay the entire amount because:-

    a.Her parents had paid her tuition fees previously;

    b.She was embarrassed that she had failed a number of subjects in the degree course and didn’t want to disappoint them by telling them she had failed;

    c.She lied to them about having passed the degree and that she would be graduating in due course;

    d.She hoped to make her own way and pay for the costs of the subjects she was required to complete her degree. It appears that the applicant’s motivations may have been brought about by her concerns for Chathuri and her wellbeing and the costs incurred by her parents associated with looking after her sister; and

    e.By reason of not paying her tuition fees on 15 June 2017, her enrolment was terminated by Swinburne.

41. Secondly she gave evidence that her fiancé, who she had been in a relationship with for eight years, since she was 14 years old, broke up with her in January 2017 after she discovered that he was having an affair with another woman. The applicant gave evidence that her fiancé was over protective and controlling while they were in a relationship but she was devastated when she discovered that he was cheating on her. The discovery of this event contributed to her being stressed and suffering anxiety and depression.

42. Thirdly she gave evidence her sister Chathuri came to Australia in September 2016 to study a Bachelors of Information Technology, but she changed her course of study to a Bachelor of Accounting. While studying, during mid-2017 Chathuri encountered severe pains as a consequence of complications with her amputation. The applicant claims she became distressed with her sister’s condition because her sister was in her care and she was responsible for her. Further the severe pains worsened and Chathuri was required to be admitted into St Vincent’s Private Hospital on 2 July 2018, 16 November 2018 and 30 January 2019. The applicant gave evidence that the Chathuri was required to have an operation on each admission which is consistent with documentation submitted relating to the medical expenses paid on each hospital admittance.

43. Fourthly the applicant gave evidence by reason of her academic and financial difficulties, her relationship breakdown, and  Chathuri’s health problems that she became severely stressed, and suffered severe anxiety and depression. The applicant tendered a Medical Impact Statement dated 22 May 2017 from Dr Liza Ng, psychologist which diagnosed the applicant as suffering from extremely severe anxiety, depression and stress. The Statement is contemporaneous with the time the applicant was having difficulties and immediately before the termination of her enrolment with Swinburne ceased. The applicant also submitted a report of Randolph Monteiro, psychologist, dated 4 June 2019 which confirmed that the applicant had been referred to him on 5 December 2018, with symptoms of depression and that she had completed six psychotherapy sessions with him, which commenced on 6 December 2018. His report outlines the applicant’s circumstances which is consistent with the evidence she has given to the Tribunal. He concludes in his report that she has experienced an adjustment disorder with mixed anxiety and depression. The Tribunal accepts from the evidence of the psychologists, that the applicant was suffering from severe depression, anxiety and stress from the time her enrolment ceased through to the cancellation of her visa.

44. Ultimately the responsibility regarding enrolment rests with the student and the applicant has accepted her responsibility for the non-payment of student fees which caused her enrolment with Swinburne to cease. However, considering the applicant was suffering from severe depression, anxiety and stress at the time of her enrolment continuing through to the cancellation of the visa, the Tribunal accepts that her mental condition contributed to the reason her enrolment ceased but also explains why the applicant did not immediately re-enrol during the 12 month period leading up the visa cancellation.

45. The Tribunal has considered the applicant’s explanations for why she was not enrolled for this substantial period and was therefore in breach of condition 8202(2). The Tribunal accepts the circumstances of the applicant were such that they indicate a reasonable explanation for not being enrolled for such a period of time. The Tribunal gives this matter significant weight towards the visa not being cancelled.

    Past and present behaviour of the visa holder towards the department

1. According to the decision record, the applicant has been cooperative with the Department and provided information when requested of her. The Tribunal gives this matter little weight in  towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

2. This matter is not relevant in this application and the Tribunal give this factor no weight.

   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

3. The applicant gave evidence that if the visa remained cancelled she would return to Sri Lanka and therefore there is no indication that she would become unlawful or be subject to detention and the Tribunal gives this factor no weight.

   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

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

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

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

   Any other relevant matters

6. The applicant gave evidence that she wanted to complete her qualifications in Australia and return to Sri Lanka to work as a civil engineer. The applicant in her Statement dated 1 June 2019 requested she be given one last opportunity to complete her studies. The Tribunal has had regard to her evidence and Statement dated 1 June 2019, but in light of the findings above it adds very little to her case and the Tribunal gives it no weight to the visa not being cancelled.

   Findings

7. The Tribunal has considered the applicant’s evidence at the hearing, the documents provided and the submissions made at the hearing, and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

8. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   Michael Biviano
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1)  The holder must be enrolled in a full time course of study or training if the holder is:

   (a)a Defence student; or

   (b)a Foreign Affairs student; or

   (c)a secondary exchange student.

   (2)  A holder not covered by subclause (1):

   (a)must be enrolled in a full time registered course; and

   (b)subject to subclause (3), must maintain enrolment in a registered course that, once completed, will 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 was granted; and

   (c)must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

   (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3)  A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a)  is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b)  changes their enrolment to a course at the Australian Qualifications Framework level 9.