1714209 (Migration)

[2019] AATA 6860

1714209 (Migration) [2019] AATA 6860 (21 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714209

MEMBER:Wendy Banfield

DATE:21 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 21 October 2019 at 9:52pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – did not maintain enrolment – no powerful or convincing reason to stay – wishes to stay in Australia permanently – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training 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 maintained enrolment in a registered course of study as required by the conditions of his Student Visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of Thailand and is currently [age] years old. He came to Australia [in] November 2011 as the holder of a Student visa. He has been granted three further Student visas and also applied for a Protection visa in 2016. The applicant planned to study [specified] courses while in Australia.

4. The applicant appeared before the Tribunal on 2 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

   Evidence of the visa applicant

5. The applicant advised he came to Australia in 2011 or 2012 to study. He had studied and worked in Thailand then wanted to extend his education. He held a Bachelor [Degree] from his home country. In Australia he studied English and then planned to do a [specified] course. The applicant’s past work experience has been as [an Occupation 1] and part-time in his area of study.

6. After studying English in Australia the applicant advised said he continued as a student up until he met his partner then “took a break for a while”. He said he has returned to study after breaking up with his partner but also had an offer of another visa which he has only recently learnt is a Protection visa. The applicant explained he had thought that if he was able to gain permanent residency it would be easier to study. He went on to say he had been told about the possibility of a Protection visa and applied for it in 2017 but it was refused. The applicant said he still wants to study but would prefer to undertake a Master’s degree that is related to his Bachelor [degree]. 

7. The Tribunal asked the applicant whether he agreed he was not enrolled to study from 26 September 2016 and 26 June 2017 as found by the Department. He confirmed he was not studying during that period because he had applied for a Protection visa at the time and had not thought he need to continue.

8. The Tribunal accepted that the applicant had come to Australia originally as a student. Regarding whether he had a compelling need to remain, the applicant said he had been here for six or seven year which he considers a large part of his life; and he has friends, work and a social life here. The applicant claimed it will be a culture shock for him to go back to Thailand and he would like to stay. The Tribunal reminded the applicant a Student visa is a temporary visa. He said he thought if he can study a Master’s degree, it would be possible to apply for a job here as Australia is more open than his home country.

9. The applicant stated he has complied with all other visa conditions. When asked whether any financial, psychological, emotional or other hardship may result from his visa being cancelled the applicant replied “not really”. Regarding the circumstances that led to the Student visa being cancelled, the applicant reiterated he had been studying until he applied for a Protection visa and was granted a Bridging visa. He said he was not given any advice about his Student visa at the time he applied for Protection.

10. The applicant confirmed there would not be any consequential cancellations as a result of his visa being cancelled. In respect of mandatory legal consequences, the applicant understood he may become unlawful in Australia and may be prevented from applying for a further visa for up to three years. If he were required to return to Thailand, the applicant said it would be hard because he has spent a lot of time here. He said after returning to his home country for his father’s funeral, he decided to study a Master’s degree for the benefit of his future.

11. The applicant wanted to add that he did not get advice or investigate properly what would happen to his Student visa once he applied for a Protection visa and if he had obtained advice, this situation (his visa cancellation) would not have happened.

12. 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

13. 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?

14. 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).

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

16. The applicant accepts he was not enrolled to study from 26 September 2016 until 7 June 2017 when the Department issued a Notice of Intention to Consider Cancellation (NOICC) and that there were grounds to cancel his Student visa. 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

17. 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 to or remain in Australia

18. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

19. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. In response the applicant stated he had lived in Australia for six or seven years and he has friends, work and a social life here. He claimed it would be a culture shock for him to go back to Thailand and he would like to stay in Australia. Apart from stating his preference for where he wants to live, the Tribunal does not consider the applicant’s evidence demonstrates a powerful or convincing reason for needing to remain in Australia. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

20. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

21. When asked whether any hardship would result from his visa being cancelled, the applicant indicated he did not think there would.

22. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be 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. 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

23. The applicant’s visa was cancelled because he remained in Australia as the holder of a Student visa but did not continue his studies for a period of 8 months. The applicant’s reason for discontinuing his enrolment was that he had applied for a Protection visa and been granted a Bridging visa. He said he had not been given advice about the status of his Student visa once he applied for Protection and that if he had investigated the situation properly his visa cancellation would not have happened.

24. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to maintain enrolment while holding a Student visa in breach of visa conditions. It is the responsibility of the visa holder to ensure they comply with the terms of any visa they hold. Therefore, the Tribunal places no weight in favour of the applicant on the circumstances in which the grounds for cancellation occurred.

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

25. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

26. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

27. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be 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

28. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children and he did not outline his protection claims. In this regard the Tribunal notes the applicant’s evidence that his application for a Protection visa has been refused.

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

29. The Subclass 572 Student Visa is not a permanent visa.

    ·     any other relevant matters

30. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

31. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant was in breach of his visa conditions to be significant. In addition, the applicant has demonstrated he wishes to remain in Australia permanently which is not consistent with the purpose of a Student visa. The Tribunal is not satisfied the applicant’s claims are sufficient reason for the visa not to be cancelled.

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

    DECISION

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

    Wendy Banfield
    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.