1722063 (Migration)

[2018] AATA 4082

1722063 (Migration) [2018] AATA 4082 (19 July 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1722063

MEMBER:  Tigiilagi Eteuati

DATE AND TIME OF

ORAL DECISION AND REASONS:          19 July 2018 at 11:33 am (QLD time)

DATE OF WRITTEN RECORD:               6 August 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant's (Class TU) visa.

Statement made on 06 August 2018 at 12:08pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – breach of enrolment conditions – no attempt to register in a course – mental health issues – hardship – parents live in Australia – 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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 September 2017 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under Section 116.1(b) the Migration Act 1958 (the Act).

1. At the hearing on 19 July 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The delegate cancelled the visa on the basis that the applicant breached the condition of his visa to remain enrolled in a registered course. The issue in the present case is whether that ground of cancellation is made out, and if so, whether the visa should be cancelled.

1. The applicant appeared before the Tribunal on 19 July 2018 to give evidence and present arguments. The Tribunal was assisted by his representative during the hearing.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant as the holder of a student visa has breached condition 8202 of Schedule 8 of the Migration Regulations 1994. If the applicant has breached that condition, under Section 116 of the Act, the visa may be cancelled.

Did the applicant comply with condition 8202?

1. Condition 8202 as it applies in this case requires visa holders to remain enrolled in a registered course. The Delegate found the applicant had not been enrolled in a registered course since 13 January 2017. That has been admitted by the applicant and the Tribunal accepts that this is the case. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202.

Consideration of the discretion to cancel the visa

1. Having found that the applicant has not complied with the condition of the visa, the Tribunal must consider whether to exercise discretion to cancel the visa. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of this discretion, however, the Tribunal has had regard to the matters raised by the applicant and his representative as to why the visa should not be cancelled.  The Tribunal has also had regard to government policy guidelines contained in the Department's Procedure Advice Manual.

1. At the hearing, the applicant gave evidence that he had been living in Australia since around 2008, first as a dependant to his father, as his father was originally the holder of a business visa. In October 2016, the applicant was granted a subclass 500 student visa.  When that visa was granted, the applicant was enrolled in a Certificate IV in Commercial Cookery which was to run from October 2016 until March 2018. That was to be followed by a Diploma of Hospitality from March 2018 to September of 2018.

1. The applicant said that shortly before he applied for the student visa he was feeling particularly depressed. He explained to the Tribunal that he felt very depressed and that he had difficulties with interpersonal communications with others. The applicant said that after the visa was granted in October 2016 he attended his cookery course for about a week, and

then stopped attending that course. This was the last time the applicant undertook formal studies in Australia.

1. The applicant's representative informed the Tribunal that the applicant placed a telephone call to the Department of Immigration at some time in late 2016 or early 2017 to indicate that he wished to withdraw from his course and return to Korea, and it is also apparent from the records in the PRISMS system that the applicant notified his education provider that he wished to discontinue his course and return to Korea due to family issues. His enrolment in his courses in Australia was therefore cancelled on 13 January 2017.

1. The applicant told the Tribunal he had discovered that his grandmother was very ill in Korea, and that this caused him to become more upset and depressed. He told the Tribunal that he returned to Korea in December 2016 to be with his unwell grandmother.  He said that at some time during 2017 she made a recovery and that he returned to Australia in May 2017.

1. The applicant admitted that after returning to Australia in May 2017, he never made any more applications for enrolment at education institutions in Australia. He explained that he was still suffering from depression and still had a problem with interpersonal interactions with others. The Tribunal asked the applicant whether his mental disease, as he described it, was ever diagnosed and he said that it was not, that he had not been to a doctor in relation to his claimed illness owing to his problem with interacting with others. The applicant indicated to the Tribunal that the problem still persists in part to this day.

1. The Tribunal asked the applicant what his plans for the future were if he were allowed to remain in Australia. At first the applicant was unable to provide the Tribunal with any plans as to what he intended to do if he were allowed to remain in Australia. By the end of the hearing, the applicant had indicated that he wished to remain in Australia to undertake a cooking course. He said that after he had finished the cooking course he intended to return to Korea briefly before examining opportunities to start a restaurant in a country outside of Korea.

1. The Tribunal asked the applicant whether he or any of his family members would suffer any hardship if his visa remained cancelled. The applicant said that he would suffer hardship if his visa was cancelled. He said that he would be prevented from returning to Australia for some three years if the visa remained cancelled, and that currently his immediate family including his parents were residing in Australia.

1. The applicant's agent indicated to the Tribunal that the applicant's father had been defrauded in his business in Australia and had been unsuccessful in obtaining [another business visa].  She said that the applicant's father was currently holding a bridging visa granted to him because of an application that he had made to the Department for a protection visa. The applicant's agent indicated that the applicant was not included in any such protection visa application.

1. The applicant said that it would be difficult for him to return to Korea because he had spent many years in Australia and felt Australian. He said that although he was born and raised in Korea and came to Australia when he was [age years old] in 2007 or 2008, that he did not consider himself to be fluent in Korean any longer and that he did not really understand the Korean culture. He said that if he were to return, he would be required to undergo two years of compulsory military service in Korea.  He said that this would be difficult for him, as he did not feel that he would be able to get along with other Koreans.

1. The applicant said that on his last trip to Korea at the end of 2016 until May 2017, he spent most of his time attending to his ill grandmother in hospital. The Tribunal notes that while the applicant's representative told the Tribunal that the applicant's father has made an

application for a protection visa in Australia, the applicant did not raise any of his own concerns or any of his own fears about persecution, serious harm or significant harm in Korea were he to return.

1. The Tribunal raised with the applicant its concern that, as the applicant had ceased his studies in Australia shortly after his visa was granted, that he had departed Australia

   in December 2016 and returned to Australia in May 2017 and had not made any application for enrolment in any tertiary or education institution in Australia since being granted the visa in October 2016 until today, the applicant may not have the will or desire to successfully undertake an education course in Australia.

1. The applicant indicated that while that may have been the case in the past, he now intended to study, complete a cookery course and then return to Korea from where he would organise to start a business in a country outside of Korea.

1. The Tribunal raised with the applicant its concern that because the applicant had asserted that he had depression and had an inability to successfully interact with others, that he may not have the ability to successfully undertake an education course in Australia. At first the applicant did not wish to respond to this concern, however by the end of the hearing the applicant had told the Tribunal that he wished to study, and that he would see a doctor about his problems if allowed the opportunity to remain.

1. Towards the conclusion of the hearing, the applicant's representative requested more time so that she could put on written submissions. The Tribunal asked the representative what she intended to submit, and she said that she intended to make submissions in relation to compelling circumstances as to why the applicant's visa should not be cancelled.

1. The Tribunal declined this request. The Tribunal has noted that the application to the Tribunal was made in September 2017, and that the agent has been the representative for the applicant since that time. The applicant has had since that time to advance any material or arguments that the applicant wanted to put to the Tribunal.

1. The applicant's representative said that she was only able to recommence contact with the applicant recently, as recently as last Friday, at which point the applicant visited his representative. The representative told the Tribunal that she had tried on numerous occasions to contact the applicant, but that he was not available and did not return her calls or attempt to contact her.

1. The Tribunal notes that even on this explanation, the applicant and his representative had had since last Friday, almost a week, to provide any documents to the Tribunal including any arguments about compelling circumstances and have decided not to do so. In those circumstances, the Tribunal decided not to allow the applicant a further opportunity to provide written submissions in writing after the hearing.  However, the Tribunal did afford the applicant another opportunity to address the Tribunal to tell the Tribunal anything that he liked about why his visa should not be cancelled. The applicant repeated that he did now wish to study, and that he would see a doctor about his medical condition, and that he should be afforded an opportunity to remain in Australia.

1. The Tribunal finds that given that the applicant ceased attending classes for his course after a week, that he departed Australia for some six months between December 2016 and May 2017, and that after he returned he has never applied for enrolment in another course of study; that the applicant does not have the will or desire to undertake an education course in Australia.

1. The Tribunal has considered that the applicant had some family problems. The Tribunal accepts that the applicant's grandmother was ill during the first half of 2017 and the later part of 2016. The Tribunal is also willing to accept that the applicant felt what he described as depression for much of the time since his visa was granted, and indeed the Tribunal accepts that the applicant finds it difficult to successfully communicate with other people. However, the Tribunal does not consider that this provides an adequate explanation for his failure to enrol in any course since October 2016.

1. The Tribunal also maintains concerns about the applicant's ability to successfully undertake a course in Australia given what he has described as depression and his inability to successfully communicate with others.

1. The Tribunal is willing to accept that the applicant will face some disappointment and be upset if his visa remains cancelled. The Tribunal accepts that the applicant has spent some ten years in Australia and in that time would obviously have developed a strong connection and affinity for the country.

1. The Tribunal also accepts that the applicant feels some isolation emotionally from Korea, from its people and its culture. The Tribunal accepts that the applicant would face some difficulties if he were to return to Korea. The Tribunal accepts that the applicant, if he remained in Korea, would have to undertake compulsory military service which he told the Tribunal was compulsory for all Korean males in Korea. The Tribunal also accepts that the applicant, as he has in Australia, would find some difficulty in communicating with others in Korea.

1. The Tribunal has also considered that as the applicant's immediate family are currently in Australia in the process of applying for other visas to remain in Australia, that if the applicant's visa remained cancelled that he may be separated from members of his immediate family. However, the Tribunal notes that the visa that the applicant held is a temporary visa, and that a requirement for these visas is that an applicant intends to remain temporarily in Australia for the purpose of studying. Apart from a week in late 2016, the applicant has not been undertaking any form of study in Australia and has not done so now for some year and a half. The applicant could not have expected to remain in Australia permanently as the holder of a temporary visa, and that even on his evidence before the Tribunal today he has told the Tribunal that after finishing a cookery course, if he were allowed to stay, he would return to Korea and then seek to establish a restaurant in a country outside of Korea.

1. The Tribunal accepts that the applicant and members of his family would suffer some hardship as a result of the cancellation of his visa. However, the Tribunal finds that the applicant’s lack of the will or desire to successfully undertake an education course in Australia and the remaining concerns that the Tribunal has about the applicant's ability to successfully undertake a course in Australia heavily outweigh any hardship to him or his family if his visa remains cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the applicant's (Class TU) visa.

Tigiilagi Eteuati Member