BASSIG (Migration)

[2020] AATA 2319

BASSIG (Migration) [2020] AATA 2319 (23 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RYAN CIRILO BASSIG

CASE NUMBER:  1715775

HOME AFFAIRS REFERENCE(S):          BCC2017/1980593

MEMBER:Peter Newton

DATE:23 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 23 March 2020 at 6:02pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – limited academic progress – applicant excluded from university – applicant changed to related vocational courses – plans to return to degree course – decision under review set aside        

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    This is an application for review of a decision dated 12 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (Act).

2.    The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study between 22 January 2017 and 9 July 2017. 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 20 August 2019 to give evidence and present arguments. At the hearing, the applicant provided to the Tribunal a letter from Australian Education Advisory Services dated 20 August 2019, an Overseas Student Confirmation of Enrolment (CoE) for Certificate IV in Commercial Cookery with Apex Institute of Education with a start date of 10 July 2017 and end date of 6 January 2019, a COE for Advanced Diploma of Hospitality Management with Apex Institute of Education with a start date of 7 January 2019 and end date of 5 January 2020 and other documents relating to the studies the applicant has undertaken.  

4.    I have read all the documents provided by the applicant and considered all of the applicant’s evidence and submissions.  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

5.    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 (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?

6.    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).

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

8.    The applicant conceded that during the period from 22 January 2017 to 9 July 2017 he was not enrolled in a registered course of study.  Accordingly, the applicant has not complied with condition 8202(2).

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 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

10.      The applicant was born in Philippines.  The Decision of the delegate dated 12 July 2017 records that the applicant was granted a TU – 573 Higher Education Sector visa on 30 January 2015.  The visa was granted to study in Australia and it was expected that the applicant would do so. 

11.      The applicant was enrolled in a Bachelor of Business in Hotel Management course with Southern Cross University.  The applicant provided a CoE for that course which had a start date of 9 February 2015 and end date of 15 December 2017.  The applicant said he failed a few subjects and because of this ceased studying that course.  The applicant then undertook and completed a General English course for 12 weeks with Cambridge College International from 10 October 2016 to 22 January 2017.  The applicant provided to the Tribunal a Statement of Attainment recording that he had successfully completed the General English Course with Cambridge College International. As stated, there is no dispute that during the period from 22 January 2017 to 9 July 2017 the applicant was not enrolled in a registered course of study.

12.      The applicant provided to the Tribunal a copy of his Application for a Student Visa which discloses that in 2013 he obtained a Diploma of International Culinary from the American Hospitality Academy.  The applicant says, and I accept, that cooking is his passion.  He indicated that his family has supported him financially to study in Australia.  The applicant says that after he failed various subjects and ceased studying the Bachelor of Business in Hotel Management course, he returned to Philippines and spoke to his parents and asked them for another chance to study in Australia. He indicated that after obtaining their approval to pursue further studies in Australia, he returned to Australia and enrolled in the Certificate IV in Commercial Cookery course and the Advanced Diploma of Hospitality Management course with Apex Institute.

13.       At the time of the hearing, the applicant had completed the Certificate IV in Commercial Cookery course.  He provided to the Tribunal a certificate confirming that he has fulfilled the requirements of that course.  At the time of the hearing, the applicant had commenced studying the Advanced Diploma of Hospitality Management course.  As stated, the course had a start date of 7 January 2019 and end date of 5 January 2020.  The applicant said that after completing that course, he aims to pursue a Bachelor of Culinary Management course.

14.      The applicant provided to the Tribunal a reference from the Australian Education Advisory Services dated 20 August 2019.  The letter states:

15.      The applicant indicated that the Certificate IV in Commercial Cookery and the Advanced Diploma in Hospitality Management is not enough.  He says he wants to go to another level.  He says he wants to prove to his parents that he can finish a bachelor’s degree.  He said his parents have given him money to pay for his education and he wants to reward them for their support.  He said that when he returned to Philippines he made a promise to his parents that he would get a bachelor’s degree. He said that a bachelor’s degree would make his parents proud and expand his learning.  In my view, the applicant has demonstrated that he is a genuine student, who has a passion for cooking, and if he is permitted to continue with studies in Australia he will pursue a Bachelor Course which will assist the applicant to obtain work or employment in his home country or a third country.

16.      I am satisfied that the applicant has a compelling need to remain in Australia to continue with his studies. I attach some weight to this consideration in the applicant’s favour.

·The  extent of compliance with visa conditions

17.      Condition 8202 is a mandatory condition applied to student visas which obliges visa holders to remain enrolled in a course of study and, depending on the course, either meet attendance requirements or meet academic progress requirements.

18.      Student visas (subclass 570-574) are granted for the purpose of studying towards, and achieving, an educational qualification in Australia.  The student visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted a student visa, the visa holder’s primary intention must be to study, maintain enrolment, attendance and course progress, in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course.

19.      As stated, the applicant accepts that he was not enrolled in a registered course of study from 22 January 2017 to 9 July 2017.  I give some weight against the applicant for the breach of condition 8202(2) by not being enrolled in a registered course of study. 

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

20.      During the hearing, the applicant gave evidence about the costs of the courses of study he has undertaken and intends to undertake.  If the applicant’s visa is cancelled he will be unable to continue with studying in Australia and he will be unable to complete his proposed future course of study.  During the hearing, the applicant said that he made a promise to his parents that he would get a bachelor’s degree.  He said will feel he has let down his parents if his visa remains cancelled and he is unable to continue studying in Australia.  

21.      In my view, if the decision of the delegate is affirmed, the applicant is likely to suffer financial, psychological, emotional hardship arising from the cancellation of his visa.  In these circumstances, I am of the view that a degree of hardship will be caused to the applicant if the Tribunal affirms the decision to cancel the applicant’s visa.  I give this factor some weight in the applicant’s favour.

·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  

22.      The Decision records that on 6 July 2017 the applicant responded to a Notice of Intention to Consider Cancellation of the applicant’s visa dated 30 June 2017.  In the response, the applicant stated:

“I have previously enrolled for Bachelor of Business in Hotel Management as my aim is to gain Australian degree that will benefit me to get into job market when I get back to the Philippines. However, I did not do well at Southern Cross University that resulted into my exclusion in the Program”.

23.      During the hearing, the applicant indicated he failed various subjects in the Bachelor of Business in Hotel Management course and then ceased studying that course.  The Decision records that he ceased studies on 18 August 2016.

24.      As stated, the letter from Australian Education Advisory Services records that:

25.      The evidence establishes that the applicant was mindful of his study obligations and his intention has always been to pursue studying in Australia.  He approached AEAS prior to the cancellation of his enrolment with Southern Cross University with the aim of pursuing further studies in the culinary field.  The applicant’s family have supported him financially.  After failing and temporarily ceasing studies, he returned to Philippines and obtained his parents’ permission to pursue further studies in the culinary field in Australia.  Upon obtaining his parents’ permission, the applicant returned to Australia and enrolled in further courses of study that he has now undertaken.

26.       I am satisfied that the circumstances in which the grounds of cancellation arose provide reason not to cancel the visa. I give this factor some weight in favour of the applicant.

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

27.      There is no information to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department of Immigration.  There is no evidence the applicant has been uncooperative with the Department of Immigration.  He promptly responded to the Notice of Intention to Consider Cancellation of the visa.  I give some weight in the applicant’s favour when considering this factor.

·Whether there would be consequential cancellations under s.140

28.      There are no dependant visa holders.  Accordingly this factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

·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

29. If the Tribunal affirms the decision to cancel the applicant’s visa, the applicant will be an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart from Australia.

30.       Additionally, the applicant will be subject to section 48 of the Act which means that he will have limited options to apply for further visas in Australia. 

31.       The applicant will also incur a penalty in that he will be subject to a three (3) year exclusion period, where he may not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Requirements 4013 to be

32.      The Tribunal accepts that there will be some hardship to the applicant if it affirms the decision to cancel the applicant’s visa and gives some weight in the applicant’s favour when considering this factor.

·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

33.      The circumstances of this case are not such that would engage Australia’s International obligations and the cancellation if the visa would not lead to a breach of Australia’s international obligations.  I therefore assess this factor as neutral. 

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

34.      This factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

·Any other relevant matters.

35.       I am not aware of any other relevant matters in relation to the Tribunal’s consideration of whether the visa should be cancelled.  

Conclusion

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

DECISION

37.      The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Peter Newton
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.