Wijethunga Mudiyanselage (Migration)

[2019] AATA 2994

Wijethunga Mudiyanselage (Migration) [2019] AATA 2994 (15 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Shashi Anuruddi Jayathilake Wijethunga Mudiyanselage
Mr Asanka Indrajeewa Wanigasekara Wanigasekara Mudiyanselage

CASE NUMBER:  1801857

HOME AFFAIRS REFERENCE(S):          BCC2017/3197908

MEMBER:Brendan Darcy

DATE:15 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Class TU student visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 15 May 2019 at 9:15am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – held several student visas prior to cancelled visa – genuine desire to pursue childhood development – subjected to familial coercion to purse alternative educational coursework – psychological issues – breach of condition for notable period of time – only marginally in applicant’s favour to set aside decision – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(b), 140, 348, 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 11 January 2018 made by a delegate of the Minister for Home Affairs to cancel the first named 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 first named applicant breached a condition imposed on his visa as the grounds for cancellation and that the grounds for the visa’s cancellation outweighed the grounds for not cancelling. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. For the purposes of this review, the first named applicant, Mrs Shashi Anuruddi Jayathilake Wijethunga Mudiyanselage, be referred to as the first applicant or the applicant; and the second named, Mr Asanka Indrajeewa Wanigasekara Wanigasekara Mudiyanselage, as the second applicant or the applicant’s spouse.

5. The applicants, citizens of Sri Lanka, first appeared before the Tribunal on 24 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The Tribunal adjourned the hearing to provide the applicants with additional time to address adverse information provided to the applicant according to s.359AA.

6. The applicants appeared before the Tribunal at a resumed hearing on 10 May 2019 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearings on both occasions.

8. 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

9. 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?

10. 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).

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

12. The applicant was first granted a Class TU Subclass 572 visa on 20 August 2009 and arrived in Australia on 1 September 2009. At the hearing, she claimed to have studied and to have completed English language coursework, a Certificate III in Children’s Services followed by a Diploma in Children’s Services after being granted a further student visa on 19 April 2012.

13. As discussed at the hearing, the applicant was granted a Subclass 573 visa on 10 September 2012 for a Bachelor of Business (Management) at Kaplan Business School (Kaplan) but did not complete this coursework.

14. In 2013 she enrolled in a package of hospitality coursework at Victoria Institute of Technology (VIT), which included a Bachelor of Hospitality. She completed a Certificate III in Hospitality (Commercial Cookery)   before being granted a further Subclass 573 visa to complete this package of coursework.

15. However the applicant only successfully completed a Certificate IV in Hospitality (Commercial Cookery) in 2015 but not the coursework. According to the decision record, the applicant was not enrolled in a Bachelor of Hospitality at VIT or any other coursework from 19 March 2017 till the date of cancellation.

16. The applicant was validly issued a Notice of Intention to Consideration Cancellation of her student visa on 7 November 2017. In her responses, variously provided on 23 November 2017 and 7 December 2017, did not dispute the grounds for cancellation.

17. The delegate acting on behalf of the Minister proceeded to cancel her Subclass 573 student visa 11 January 2018 and subsequently applied to have the delegate’s cancellation decision reviewed by the Tribunal on 24 January 2018. Attached to that valid review application was a copy of the delegate’s decision record.

18. At the initial scheduled hearing, the applicant did not dispute the grounds for cancellation existed.

19. 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).

20. It follows from this that the applicant was not compliant with condition s.116(1)(b) and the grounds for cancellation of visa existed.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

21. 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’.

    Credibility finding arising from adverse information

22. During the initial hearing, the applicant was provided a copy of the PRISMS (Provider Registration and International Student Management Systems) record pertaining to her enrolment history with authorised education providers in Australia. It was provided to her as adverse information.  Of particular concern to the Tribunal which would be the reason or part of the reasons to affirm the delegate’s cancellation decision had been the PRISMS record indicating to the Tribunal that applicant had finished coursework pertaining to a Diploma of Hospitality when the applicant claimed that she had completed the coursework. The Tribunal explained to her the relevancy of the information and was provided a break to discuss the adverse information with her representative.

23. After the break, the applicant wanted to respond immediately. However the hearing was adjourned to provide the applicant additional time to address this apparent discrepancy before it considered the discretionary elements of this decision and it recommended attaining a document or statement from her then education provider to assist the Tribunal.

24. On 3 May 2019, the applicant’s representative provided a letter from her former education provider (VIT) dated 30 April 2019. The letter which stated that applicant was enrolled on a full time basis where she completed Certificate III and IV in Hospitality (Commercial Cookery) but completed zero units of a Diploma of Hospitality (between 15 February 2016 and 17 July 2016) and zero units of an Advanced Diploma of Hospitality which she transitioned to on 29 August 2016.

25. On 8 May 2019, the Tribunal took the additional step to contacting the education provider to ensure the authenticity of the document submitted.

26. During the resumed hearing, the applicant claimed that she experienced psychological and other barriers as extenuating experiences in participating in this diploma coursework in hospitality.

27. Based on this information, the Tribunal is satisfied that the applicant participated in a Diploma and an Advanced Diploma and that the PRISMS record indicated only her participation and probably her paid tuition fees as ‘finished’ in her Diploma and Advanced Diploma and that it did not indicate satisfactory academic progress. This non-adverse finding is relevant with regard to considerations outlined below.

    The purpose of the visa holder’s travel to and stay in Australia

28. It is noted that the applicant held several student visas prior to this cancelled one under review in this decision. While she held these other visas, the applicant completed an ELCIOS coursework and a Diploma of Children’s Services. As explained by the applicant, she applied to undertake a Bachelor of Business (Management) in 2012 but found the mathematical/accounting element of the coursework too difficult and then changed her coursework towards commercial cookery and hospitality, which was unrelated to her early childhood work after gaining assistance and advice from a migration agent. In 2013, the applicant then undertook to enrol in a package of coursework in hospitality, including a Bachelor of Hospitality. While the applicant completed Certificates III and IV, it was further claimed that she did not academically complete the diploma and advanced diploma levels of the coursework and admitted her Bachelor of Hospitality enrolment was cancelled because she was unable to progress to a degree level studies without completing diploma-level coursework.  As mentioned above, the Tribunal accepts the applicant participated in but did not complete a Diploma and an Advanced Diploma in Hospitality at VIT, as claimed.

29. The applicant provided some oral and written evidence that she wanted to continue to her studies in hospitality. The Tribunal challenged this by stating that her lack of completion of study and the claimed reasons for that (see below), do not support this claim. For instance, the applicant also provided written and oral evidence that she was advised to by a migration agent to move to commercial cookery and oral evidence that her parents feared she was too vulnerable to live in a rural area with a family member to pursue employment in early childhood development and that this further indicated she did not have a genuine desire to develop a career in hospitality. The applicant then responded by stating that honestly she was not enthusiastic about commercial cookery or hospitality and that she wanted a career in early childhood development but she had made the decision to pursue hospitality under her duress when her brother and her parents interfered in her educational choices. The applicant spoke of the coursework as accessible and interest to her and that she had undertaken practical units in the workplace which she enjoyed.

30. On balance and taking all the evidence into account, the Tribunal accepts that the applicant has a genuine desire to develop a career in early childhood development and it is accepted she subjected to familial coercion to purse alternative educational coursework for which she had little aptitude.

31. The Tribunal finds that the applicant does have a genuine vocation or interest in early childhood development and she wished to advance her studies to enhance that vocation. The Tribunal notes that while she has some physical and psychological barriers to achieving those goals, she now has a supportive husband. While the Tribunal remains somewhat troubled whether the applicant has the capacity for a Bachelor level degree (namely she struggles with mathematics), it is not accepted she does not have the capacity to complete at least an Advanced Diploma and at most a Bachelor degree in early childhood development. With particular emphasis on her earlier vocational educational achievements, the Tribunal accepts the applicant genuinely wishes to remain in Australia as a genuine higher educational student for the purpose for which this visa under review was granted.  Taking all this relevant information into cumulative consideration regarding about the applicant’s purpose to travel to and stay in Australia, the Tribunal gives this significant weight in favour of the visa not being cancelled and being a genuine student capable of upholding conditions imposed on any further student visa granted to her. 

    The extent of compliance with visa conditions

32. The extent of non-compliance of condition 8202(2), in which the applicant was not enrolled in a Bachelor’s or Master’s degree for a seven to eight month period, is found to be a notable -but not a significant – period of time by the Tribunal.  The Tribunal gives this factor notable weight towards the visa being cancelled.

33. The delegate’s decision does not record any information about further non-compliance. Neither is the Tribunal aware of any further non-compliance. The Tribunal gives this factor some weight in favour of the applicant.

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

34. When asked about the degree of hardship to be encountered by the applicant if the visa remains cancelled, the applicant explained that the situation back in Sri Lanka would not stop the applicant and her spouse in finding accommodation or work and their families would be happy to see them. However she was deeply concerned that her elderly mother-in-law had a frail heart problem. As the applicants had not informed the second applicant’s family about the visa being cancelled, they both feared the news would exacerbate her heart disease. While the Tribunal accepts that the applicants have not informed the second applicant’s family about their migration status and that second applicant’s mother has a serious heart disease, the Tribunal finds that this news about the cancellation of their visa is an embellishment, albeit understandably advanced.

35. The Tribunal has also noted that the applicant has some notable psychological and emotional problems including with self-harm or suicidal ideation and arising from the disappointment of not reaching academic goals in early childhood education. If the applicant were to return to Sri Lanka, she will be so with a supportive spouse and to a caring, albeit sometime overbearing, family and to a country where mental services are available.

36. When cumulatively considering all the above accepted factors, the Tribunal finds that the degree of hardship – financial, emotional, psychological - to be faced by the applicant and her spouse to be small – but not severe, significant or even notable. Accordingly The Tribunal gives these hardship considerations a correspondingly notable amount of weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

37. The first applicant has provided a range of reasons she was unable to complete her Diploma coursework in hospitality which led to the cancellation of her enrolment in a Bachelor’s degree and subsequently, the cancellation of her visa. These are addressed below:

38. The applicant claimed she was unable to study any further because it was too physically demanding given her scoliosis. Scoliosis is an abnormal lateral curvature of the spine. The applicant received major surgery in 2007 before arriving in Australia. When she was granted this visa under review, the department had been satisfied that there were no complications arising from this condition and that surgery and no impact on her functioning independently with activities of daily living.

39. The Tribunal accepts the coursework in hospitality was challenging in circumstances, but it has not satisfactorily explained her previous academic accomplishments in both reaching a diploma in children’s services and Certificates III and IV in Hospitality.

40. It is also claimed that she lived under difficult circumstances because her brother had been physically abusive in 2013 and told her could not achieve her academic and career goals due to her disabilities. Due to this incident, she lived separately and independently in shared accommodation with no further incidents. However this incident of violence occurred prior to the granting of this visa under review and that she had been living with the support of her husband. While the Tribunal accepts this account, the Tribunal finds that they have not been directly or substantially responsible for her non-compliance with condition 8202 between March 2017 and January 2018.

41. The applicant had also advanced one of the reasons she was non-compliant with condition 8202 had been the first applicant’s distinctive voice. The applicant claimed she sounded child-like. The Tribunal admits it had difficulties in both hearing and understanding the applicant due to this condition. The applicant explained the condition was psychological, linked to childhood trauma, and not physical. The Tribunal accepts this. However, given her past academic achievements neither does this condition satisfactorily explain her non-compliance with condition 8202.

42. The applicant relatedly claimed that she had been bullied at VIT when she undertook a Diploma. Specifically the applicant was asked to the reasons she spoke like a baby and that some people laughed at her and she felt excluded. However, she did not make a complaint, claiming she did not know she could complain. While it is plausible that other students and even teaching staff asked insensitive questions and that the applicant adversely internalised these questions, the applicant had earlier completed coursework with the same education provider.  The Tribunal does not accept this alone satisfactorily explains her non-compliance. After all it was open to her to leave this education provider for another.  

43. More compellingly, the applicant has provided four psychological reports between 2013 and 2019 that the applicant has consistently experienced depressive illness and she was being treated for it.  At the time of her non-compliance, the applicant explained that her psychological illness demonstrated itself when she was ceased meaningfully participating or attending classes. The Tribunal notes the delegate made the point the applicant had access to being treated psychologically for her depressive symptoms and there is reasons in this regard are unconvincing.

44. However, based on the Tribunal’s more detailed representation of her life arising from supportive evidence, it finds that the applicant has lived under a long period of stress and anxiety where she had been culturally deferential towards and emotionally dependent on her other family members and who were motivated to isolate her from living independently as they feared that her ambitions were not within her reach or capacities due to her vulnerabilities. While well-intentioned, this has the dreadful effect of arresting her development into making independent and adult decisions in her interest, including as a student visa holder. For example, when the Tribunal asked the reason she did not applied for a skilled graduate or some other visa in 2013 when she completed a diploma, the applicant explained they did not want to live away from a family member by moving to interstate or into regional Australia.   Another instance had been when her brother physically assaulted the applicant, her family urgently and hastily arranged a marriage with the second applicant so she would have a companion and a chaperone which in their eyes was a strange country.  It is clear that the applicant has also undertaken a number of decisions about her enrolment, namely moving away from children’s services to hospitality due to a family consensus which has not adequately accounted for her own personal ambitions. She claimed these same psychological and cultural pressures compelled her not to confide in her spouse who would also be adversely affected by her non-compliance.

1. As discussed in the hearing, the applicant, due to her vulnerabilities, had spent much of life infantilised and lived with the burden of low expectations as someone who has some obvious and distinctive conditions. She also a psychosomatic or psychologically triggered condition with her distinctive voice and the evidence from a credible third party professional that the applicant has a depressive illness. The Tribunal has places notable weight on this evidence in going to partially explain her non-compliance due to extenuating circumstances. The applicant’s psychologist identified this as a condition disorder where stressful events weakens or even paralyses in severe cases (which this case is not). The psychologist attributed to her brother’s abusive assault in the 23 January 2018 report. However this does not explain how the applicant continued her studies while she lived independently for a notable period of time prior to her arranged marriage. From the Tribunal’s observation, the non-compliance appears to be linked to a combination of factors: a recently arranged marriage, the responsibility of a dependant’s migration status (her husband) on herself for the first time in her life and the ebbing away of her genuine career goals due to heavy-handed family interference. 

2. However these extenuating circumstances were not so severe or significant that she required hospitalisation or that she was sectioned under mental health legislation. Neither the circumstances so severe that they explain her not seeking assistance from her spouse or her family back in Sri Lanka. Nor does it explain that she could not seek a deferment (which did not attempt) or seek to re-enrol in more suitable coursework with the assistance of a migration or education agent. She could have also sought advice from psychologist. Instead it appears she has acquired written psychologic reports primarily for migration or educational purposes and not to seriously treat her accepted illness which it is claimed weakened the applicant from advancing her studies.

3. When considering all of the accepted circumstances – familial, cultural, psychological and physical - that have been claimed for the applicant’s non-compliance leading to the cancellation of her visa, the Tribunal accepts them to be extenuating. However, the applicant has failed to demonstrate that these extenuating circumstances, cumulatively considered, were so significant or severe that they were beyond her control, in the sense, that the first applicant’s notable non-compliance could not have been avoided or mitigated.

4. Nonetheless and with particular emphasis on the accepted psychological conditions of the applicant in mind, the Tribunal gives the accepted extenuating circumstances, cumulatively considered, notable weight towards the visa not being cancelled.

   Past and present conduct of the visa holder towards the Department

49.    According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. There is no evidence of any adverse information in this regard before the Tribunal. Accordingly the Tribunal gives this some little weight in his favour.

If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

1. Not relevant.

   whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

51.    During the scheduled hearing, the Tribunal discussed the effect of section 48 of the Act if the cancellation of the applicant’s visa were to proceed. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia, arising from the operation of section 48 in limiting the applicant in applying for other visas and may have to depart or be detained. The first applicant claimed that she would be very sad if the visa remains cancelled. As the Tribunal accepts the applicant’s plans for her studies will be adversely affected by these mandatory legal consequences if her visa remains cancelled, accordingly the Tribunal gives this a little weight towards the visa not being cancelled.

Whether there would be consequential cancellations under s.140

1. In this review application, the first applicant is married to the second applicant with whom she has not had any children. The second applicant had his student visa issued as a dependent spouse to the first applicant and his visa was consequentially cancelled under s.140. It is not unreasonable nor an unintended consequence of the legislation that family members who hold secondary temporary visa holders are cancelled when the primary visa holders are cancelled. It will keep their migration statuses align and prevent one them being able to remain in Australia while the other must depart.

2. The Tribunal accepts that there will be adverse implications to the second applicant if this visa remains cancelled. It is noted that the first applicant feared her husband may be required to find employment in Sri Lanka or in the Middle East where he had worked a temporary migrant prior to his marriage. The first applicant said she loved her country but its corrupt politicians were of a poor quality. She also feared that as her husband’s family were not aware of the cancellation of either of their visas that it would have adverse health implications on her mother-in-law, as discussed above. The second applicant said he could return to Sri Lanka and it was likely he would return to Kandy (central Sri Lanka) as work as a mechanic but he feared the news of their return under such circumstances where migration to Australia was unlikely in the future would adversely affect his mother. Noting that the applicants are able to return to find work and to be supported by supportive families, the Tribunal finds that the adverse implications on the second applicant in this regard are not severe or significant or even notable. For this reason, the Tribunal only places a small amount of weight in favour of this visa not being cancelled.

   Whether any international obligations would be breached as a result of the cancellation

3. The applicant attempted to advance that she feared returning to Sri Lanka because of the recent terror attacks by radicalised Islamic terrorists at Catholic churches and international hotels. However the applicant also stated that she was a Buddhist and admitted the likelihood of being attacked by Muslims or coming under adverse interest from the authorities in Buddhist-majority Sri Lanka was considerably less than Christian, specifically Catholic, and Muslim Sri Lankans. However, in this review application, the Tribunal is not obliged to make exhaustive findings in the regard as it notes that the first applicant or her spouse have not applied for a protection visa and is not barred from doing so. Accordingly, the Tribunal only places a small amount of weight on this consideration in favour of the visa not being cancelled.

   Any other relevant considerations

4. The applicant demonstrated a more than adequate level of insight into her psychological conditions. The Tribunal is satisfied she understands the value of long-term mental health treatment to assist her in achieving her life goals and overcoming her co-morbid conditions, if this visa were to be reinstated.

   Conclusion

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

6. The fact remains the first named applicant was in breach of condition 8202 for a notable period of time and has not demonstrated any significant hardships if the visa remains cancelled. Nonetheless, in this decision, specific unfavourable factors are found not to have outweighed those countervailing favourable factors, cumulatively considered, towards not cancelling her student visa.

7. The applicants should be aware that the Tribunal reached this decision only marginally in their favour.

8. The Tribunal notes that the first named applicant will have to apply for a new visa in a short period if he wishes to study in Australia. Due to changes in the Migration Regulations, Class TU Subclass 572 visas are not available to the applicant, as the Minister has made reductant Subclasses 570 through to 576 visas. They were replaced by Class TU Subclass 500 student visas on 1 July 2016.

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

   DECISION

10. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Class TU student visa.

11. The Tribunal has no jurisdiction with respect to the other applicant.

    Brendan Darcy
    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.