1901155 (Migration)

[2020] AATA 5896

1901155 (Migration) [2020] AATA 5896 (12 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901155

MEMBER:Joseph Lindsay

DATE:12 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 12 November 2020 at 10:08am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to non-enrolment – financial problems – intentionally gave false information in relation to financial capacity – wishes to stay in Australia permanently – non-genuine temporary entrant – international obligations – pending protection claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212; Schedule 8, Conditions 8202, 8516

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 18 December 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 applicant appeared before the Tribunal on 9 November 2020 to give evidence and present arguments. The applicant was assisted by an interpreter.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. 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?

4. 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).

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

6. As part of his application for review, the applicant provided a copy of the delegate’s decision dated 18 December 2018 to the Tribunal and the Tribunal has considered the information in that decision.

7. In the hearing, the applicant agreed that he had not been enrolled in a registered course of study since 18 August 2017.

8. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 18 August 2017. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

   Consideration of the discretion to cancel the visa

9. 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 Procedural Instruction ‘General visa cancellation powers’.

   The circumstances in which the ground for cancellation arose

10. In the hearing, the Tribunal discussed the applicant’s circumstances and asked him why he had not been enrolled in a registered course of study since 18 August 2017.

11. In summary, the applicant indicated that he could not pay for his course fees because his family had financial problems and, also, he had difficulty in getting part time work in Australia.

12. The applicant admitted that he did not advise either his course provider or the Department about his inability to pay for his course fees. The applicant admitted that he knew that as part of the process for being granted a student visa, he had provided a financial guarantee that he could afford to pay the costs of his education whilst he was in Australia.

13. Later in the hearing, the applicant admitted that he never actually had the financial capacity to financially support himself and pay his course fees. The applicant freely admitted that he did not sit or pass an International English Language Testing System (IELTS) test, and that he intentionally gave false information on his original student visa application about his financial capacity to pay for course fees and support himself financially whilst he was in Australia. 

14. The applicant also admitted that he wanted to stay in Australia permanently and he has also applied for a protection visa which the Department has refused. The applicant admitted that he has applied to the Tribunal for review of the Department’s decision to refuse him a protection visa.

15. In respect to the above, the Tribunal accepts that the applicant:

    a.could not pay for his course fees because his family had financial problems and, also, he had difficulty in getting part time work in Australia;

    b.did not advise either his course provider or the Department about his inability to pay for his course fees;

    c.never actually had the financial capacity to financially support himself in Australia and pay his course fees; and

    d.intentionally gave false information on his original student visa application about his financial capacity to pay for course fees and support himself financially whilst he was in Australia.

16. The Tribunal accepts that the applicant was required to pay for his course fees to remain enrolled in his registered course of study and maintain compliance with his visa conditions. However, the Tribunal finds that the applicant’s actions in intentionally giving false information on his original student visa application about his financial capacity to pay for course fees and support himself financially whilst he was in Australia to be a very serious deception and accordingly gives high weight against the applicant in this respect.

17. The Tribunal has also considered that the applicant wishes to stay in Australia permanently and he has applied for a protection visa. The Tribunal accepts that the applicant wishes to stay in Australia permanently. However, in making these submissions, the Tribunal has concerns about whether the applicant is a genuine applicant for entry and stay as a student and whether he intends genuinely to stay in Australia temporarily, as required by cl.500.212 of Schedule 2 to the Regulations. Based on the applicant’s submissions that he wishes to stay in Australia permanently and he has applied for a protection visa, the Tribunal is not satisfied that the applicant is a genuine temporary entrant.

18. In all the circumstances as detailed above, the Tribunal does not accept that the applicant took reasonable steps to maintain compliance with his obligation to remain enrolled in a registered course of study under visa condition 8202. Accordingly, the Tribunal places high weight on this information against the applicant.

    The purpose of the visa holder’s travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

19. In the hearing the applicant indicated that he came to Australia to practice English.  

20. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to practice English, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

21. In addition to the applicant’s failure to comply with condition 8202, the Tribunal has concerns that in not being a genuine temporary entrant the applicant may have also breached condition 8516 (the holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa), the primary condition being that the applicant is a genuine applicant for entry and stay as a student and whether he intends genuinely to stay in Australia temporarily, as required by cl.500.212 of Schedule 2 to the Regulations. Accordingly, the Tribunal finds that, in addition to condition 8202, the applicant has also failed to comply with condition 8516 of his visa conditions because the Tribunal is satisfied that the applicant no longer continues to be a person who would satisfy the primary criteria for the grant of the visa. 

22. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

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

23. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled.

24. In response, the applicant indicated that both he and his family (although his parents are separated) would be disappointed if his student visa were cancelled. The applicant also indicated his concern that he would experience difficulty in finding work on his return to Thailand.

25. The Tribunal accepts that there may be some disappointment caused to the applicant and his family, and that he may experience difficulty in finding work on his return to Thailand, if his visa was cancelled and gives this matter some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

26. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140 of the Act

27. The applicant does not have any dependants on his student visa who would be affected if his student visa was cancelled. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

28. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

29. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to Thailand.

30. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

31. The Tribunal places some weight on this information in the applicant’s favour.

    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

32. In respect to this factor, the applicant spoke at length about his protection visa application. The applicant made clear that his claim was that he feared for his life if he returned to Thailand because he had been involved in drug trafficking. He claimed that he personally had been a drug trafficker.

33. However, the applicant then changed his evidence and said he did not get involved in drug trafficking. Rather, he claimed that he witnessed people being involved with buying and selling marijuana about 5-6 years ago. He said that he was threatened by these people who said they could track him and harm him.

34. He said that these people hit him in the face on one occasion when he was in Thailand but he was never harmed in any other way. He said that he was never kidnapped.

35. He said he has had no contact at all since he left Thailand with the people he claimed had threatened him.

36. When asked further questions about his protection visa application, the applicant then said a woman named “[Ms A]” who is a “friend of a friend” came to the [workplace] where he worked and helped him with his protection visa application.

37. The applicant then denied he was ever involved in selling drugs or that he was ever a drug trafficker.

38. Later in the hearing, the applicant made clear that he never actually read what was in his protection visa application that the person named “[Ms A]” prepared for him. He later indicated that he just wanted to stay in Australia. Whilst he said that he did not want to return to Thailand, he said that he would voluntarily return to Thailand if he was required to do so.

39. When asked if he had any genuine fears about returning to Thailand, he indicated initially that he was concerned about recent protests, but then he indicated that his main concern was his economic situation because he had come from a poor background. He then said that Thailand was generally a dangerous place.

40. In assessing the above evidence, the Tribunal is concerned that the applicant may not have credible claims for protection. The Tribunal accepts that the applicant does not have a genuine fear of returning to Thailand given that he would voluntarily return to Thailand if he was required to do so. However, it is not appropriate for the Tribunal to make a decision about the applicant’s protection claims as the applicant has a current application at the Tribunal for review of the Department’s decision to refuse his protection visa. Another member will be making the decision in respect to the applicant’s protection claims.

41. In consideration of the above information, the Tribunal is not satisfied that there would be a breach of any international obligations if the applicant’s student visa was cancelled.

42. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

43. In respect to whether there were any other relevant matters he wished to discuss, the applicant indicated there were no further relevant matters he wishes to raise with the Tribunal.

    Conclusion

44. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.

45. In balancing the circumstances above, the Tribunal concludes that the visa should be cancelled.

    DECISION

46. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Joseph Lindsay
    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.