1815866 (MIGRATION)

[2018] AATA 5162

1815866 (MIGRATION) [2018] AATA 5162 (13 AUGUST 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815866

MEMBER:Jason Pennell

DATE:13 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 13 August 2018 at 9.58am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa – not enrolled in a registered course of study – breach of condition 8202 – subject to Public Interest Criterion 4013 – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8

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 24 May 2018 made by a delegate of the Minister for Home Affairs 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 complied with a condition of the 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.

3.The applicant appeared before the Tribunal on 17 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

4.The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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.

7.At the hearing the applicant provided a copy of his Malaysia Passport [No]. . It showed that he was born on [date of birth] in Selangor, Malaysia. The applicant’s evidence was that his parents [and siblings] all continued to live in Selangor, Malaysia. The applicant attended school in Selangor until form [deleted] and that he had not attended college or university.

8.The applicant’s movement details indicate that he arrived in Australia [in] March 2016 on a [temporary] visa [and] was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) on 27 July 2016. The Provider Registration and International Student Management System (PRISMS) displays that the applicant was enrolled in the certificate I English course for the period 15 June 2016 to 14 December 2016 and a certificate II English course for the period 15 February 2017 to 14 August 2017. The applicant completed both courses. On 15 October 2017 the applicant enrolled in a certificate III English course, however, the PRISMS records that his enrolment was cancelled on 8 November 2017 due to him not commencing his studies.    

9.The applicant was located at a property known as [address details deleted] (‘the property’) [in] May 2018 by the [police] as a result of them executing a search warrant at the property. The [police] officers conducted a visa status check on all occupants of the property. As a result of a search of PRISMS it was discovered that the applicant was not enrolled in a registered course in breach of his visa conditions. As a result the delegate cancelled the applicant’s visa on 24 May 2018 on the basis that he was in breach of condition 8202(2) of the grant of the visa by not being enrolled in a registered course of study from 8 November 2017.

10.The applicant was placed in detention. On 7 June 2016 the applicant was granted a Bridging Visa (subclass 050) and released from detention pending his review of the delegate’s decision to cancel his Subclass 572 Vocational Education and Training Sector visa.

11.At the hearing the applicant did not provide the Tribunal with any additional documentation. At the hearing the tribunal had in its possession the departmental file [No] which contained a copy of PRISMS and the delegate’s decision dated 24 May 2018.

12.For the following reasons, the Tribunal has concluded that the delegate’s decision to cancel the applicant's visa should be affirmed.

Did the applicant comply with Condition 8202?

13.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).

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

15.The delegate’s decision outlined that the applicant had not been enrolled in a registered course of study since 8 November 2017. The delegate was satisfied that the grounds for cancelation existed by reason that the applicant’s admission that he did not hold a current Certificate of Enrolment and that he had not been to school for some time. 

16.At the hearing the applicant confirmed that he arrived in Australia from Malaysia [in] March 2016. He said that he arrived on a [temporary] visa but soon changed it to a student visa as he wanted to study English. The applicant confirmed that he had enrolled in and completed a certificate I English course and a certificate II English course. He said that he was enrolled in a certificate III English course but was not satisfied with the quality of the teaching. He said that the teacher was a non-native English speaking teacher and he was not satisfied with the quality of teaching that was being provided.  As a result he refused to attend any further classes and instructed his migration agent to find and enrol him in an alternative English language course. The applicant conceded that he stopped attending the certificate III English course and that he was not currently enrolled in a registered course.  The applicant confirmed that he had not been notified by his agent that he had not been enrolled in any alternative course. In addition he confirmed that he had made no effort to personally enrol himself in an alternative registered course.    

17.The Tribunal notes that enrolment in a course of study in a registered course was, at all times, a condition of the applicant's subclass 573 Student (Temporary) (class TU) Higher Education Sector visa.

18.Therefore, based on the applicant’s own evidence and PRISMS report provided in the department file the Tribunal finds that the applicant was not enrolled in a registered course since 8 November 2017. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

19.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’

Applicants purpose of traveling and staying in Australia.

20.During the course of the hearing the applicant said that he arrived in Australia on a [temporary] visa and then had it converted to a student visa so that he could study English. He confirmed that his purpose in traveling and staying in Australia was to study. However, despite completing certificate I and certificate II English courses the applicant was quick to dismiss the certificate III course on the basis that his teacher was not up to standard. Despite his evidence that he instructed his agent to find an alternative course, the applicant was not able to provide any evidence of any alternative course in which he had been enrolled. In addition the applicant’s evidence was that he had personally made no effort to enrol in any alternative registered course.  

21.In addition, the Tribunal notes the applicant’s comment to the delegate when asked about the circumstances in which the breach of the applicant’s visa arose was that he was ‘too lazy.’[1] In addition, the applicant showed no intention of returning to study saying to the delegate that his visa was about to expire and that he intended to make an application for protection visa.[2] At the hearing the applicant said that he had panicked at the time of making the comments to the delegate. Nevertheless, despite being aware of his visa conditions, the applicant acknowledged that he was not enrolled in a registered course and that he had made no effort to do so by either enrolling in a registered course personally or making sure his agent had had done so.

[1] Notice of Intention to Consider Cancellation dated 25 May 2018.

[2] Notice of Intention to Consider Cancellation dated 25 May 2018.

22.Therefore, the Tribunal accepts that the applicant completed the certificate I and certificate II English courses. However, the fact that he abandoned the certificate III course and made no attempt to re-enrol in alternative course, the Tribunal gives little weight to the applicant’s statement that the purpose of him traveling and staying in Australia was to study. 

Compliance with visa conditions

23.The applicant was not enrolled in a registered course from 8 November 2017. The applicant’s visa was cancelled on 24 May 2018. The applicant has remained in Australia without having complied with the conditions of his visa. The Tribunal considers that applicant’s non-compliance with his visa conditions is significant and as such gives little weight in favour of the applicant in considering this factor.

The degree of hardship that may be caused to the Applicant. 

24.The applicant response to the delegate concerning the degree of hardship he may suffer in the event that his visa was cancelled it would create a financial burden for his family as they would have to re pay the debt incurred for his studies. At the hearing the applicant confirmed to the Tribunal that he has a debt relating to his student fees that he is currently working to repay. He said that if he returns to Malaysia he will have difficulty earning enough money to repay the debt. While the Tribunal acknowledges that the applicant will suffer some hardship in the event that his visa is cancelled, including not being able to earn money in Australia to repay his debt, the applicant was aware of the conditions of the visa. The purpose of the visa is to allow the applicant to study in Australia rather than earn money.

25.The Tribunal notes that in the event that the applicant’s visa is cancelled, under s.48 of the Act he may have limited options available to him if applying for further visa in Australia. In addition he will be subject to Public Interest Criterion 4013 which means that he may not be granted a temporary visa for three years from the date of cancellation.

26.The Tribunal accepts that if the applicant’s visa is cancelled he will suffer some hardship by having to return Malaysia as claimed and as such has given some weight to hardship the applicant will suffer in the event his visa is cancelled in making its decision.

The circumstances in which the grounds for cancellation arose

27.The applicant confirmed to the Tribunal that he was aware of the visa conditions. He claims that he breached the conditions of his visa to be enrolled in a registered course as a result of the fact that the standard of teaching in the course in which he was enrolled was not of a satisfactory standard. The applicant’s evidence was that the teacher was a non-native English speaking teacher and was not able to teach English to the standard required. As a result he abandoned the course and instructed his agent to enrol him in an alternative registered course. The applicant said that he had stopped attending the registered course and that he relied on his agent to enrol him in another course. The applicant confirmed that his agent had not enrolled him in another course and that he had not made any effort personally to comply with his visa conditions by enrolling himself in an alternative registered course.     

28.Therefore, in circumstances where he was aware of his visa conditions, he had abandoned the registered course and made no attempt to re-enrol in any alternative course, the Tribunal gives no weight to the applicant’s statement that he had relied on his agent to enrol him in an alternative registered course. 

29.Accordingly, the Tribunal places no weight on this consideration in the applicants favour.

Past and present behaviour of the applicant

30.The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

31.The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

32.Accordingly, the Tribunal places no weight on this consideration in the applicants favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

33.The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

34.Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

35.Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Jason Pennell

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.