CHEAH (Migration)

[2019] AATA 3452

CHEAH (Migration) [2019] AATA 3452 (9 August 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHANG BOON CHEAH

CASE NUMBER:  1706443

HOME AFFAIRS REFERENCE(S):          BCC2016/3647837

MEMBER:Gregory Sarginson

DATE:9 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 09 August 2019 at 3:24pm

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 – length of non-enrolment – temporary separation from wife – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 March 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 been enrolled in a registered course of study for the period from 9 March 2016 to 20 October 2016, and that the visa should be cancelled. 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 12 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, Rou Ying Yi. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. 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

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 (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?

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 decision of the delegate outlined that the Provider Registration and International Student Management System (PRISMS) record indicated that the applicant was studying a General English course on 20 March 2017, which the applicant had commenced on 14 November 2016.  However, the PRISMS record also showed that the applicant was not enrolled in a registered course of study for the period from 9 March 2016 to 20 October 2016.

   Documentary Evidence Provided by Applicant

9. The only document provided by the applicant to the Tribunal in support of the application for review was a copy of the applicant’s passport.  The applicant provided no documents in respect of any registered courses of study he had enrolled in since his arrival in Australia.  The applicant was granted a student visa on 10 September 2014.

10. However, prior to the cancellation of the visa, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) to which he responded by way of a letter dated 14 March 2017.  In the response to the NOICC, the applicant stated that he was “writing to explain the reason for non-enrolment from 9 March 2016 to 20 October 2016.  The applicant stated that prior to coming to Australia, he had obtained advice from a migration agent.  The applicant had told the migration agent that he only had “high school certificate and limited English knowledge” but the agent advised that he should enrol in a “business course” as it was “not that hard”.

11. The applicant stated in the response to the NOICC that at the beginning of the business course “things went smoothly” but that soon he could not complete assignments because they “exceeded my ability” and teachers and other students would not provide assistance.  The applicant then spoke to his migration agent about transferring to an English course.  The agent did not provide assistance in this regard, and stopped taking telephone calls from the applicant.  The college in which the applicant was studying the business course demanded he pay course fees, and the applicant refused to pay unless he was transferred to another course.  The applicant “ignored the warning letters from the college” as he believed that the college would “release me if I didn’t pay the tuition fee and attend class”.

12. The applicant stated in response to the NOICC that he had then sought advice from a new migration agent who had enrolled him in a “general English course” as soon as he had obtained a cancellation of enrolment from his previous education provider.  The applicant stated that he studied “very hard regardless of my poor English” and “I wish to complete the course and get better qualification finally”.

    Applicant’s evidence at hearing

13. The applicant is 31 years old and is married.

14. The Tribunal asked the applicant whether he agreed or disagreed that he had not been enrolled in a registered course of study for the period between 9 March 2016 and 20 October 2016.  The applicant stated he did not know, as he had “left it to his migration agent”.

15. The Tribunal had obtained a PRISMS record prior to the hearing.  The PRISMS record showed that the applicant had enrolled in and completed a Certificate II in Business and a Certificate III in Business in the period from 29 September 2014 to 11 September 2015, and had completed both courses.  The applicant had also been enrolled in a Certificate IV in Business; a Diploma of Business Administration; and an Advanced Diploma of Business, but all of those enrolments had been cancelled.   The course was a single course of study comprising of various components (Certificate III: Certificate IV; Diploma; Advanced Diploma) constituting a “package” course in business studies.

16. The applicant had then enrolled in a General English (Beginner to Advanced) course on 14 November 2016, which had been cancelled by the education provider.  The PRISMS record did not contain any record of the applicant being enrolled in a registered course of study after 14 April 2017.

17. Pursuant to s 359AA of the Act, the Tribunal put to the applicant that the information contained in the PRISMS record would be a reason or part of the reason for affirming the decision of the delegate because the applicant had not completed any registered course of study since 11 September 2015 (over 3.5 years since the Tribunal hearing) and which would (subject to the comments and evidence of the applicant) lead the Tribunal to conclude that he had not been enrolled in a registered course of study for the period from 9 March 2016 to 20 October 2016 and further that the applicant’s intention to remain in Australia was not genuinely for the purpose of study, because his only enrolment subsequent to 20 October 2016 was in a General English course and that enrolment had been cancelled by the education provider . 

18. The Tribunal explained to the applicant that he may orally comment and respond at the hearing to the information contained in the PRISMS records, or may seek additional time to comment and respond.

19. The applicant stated that he could orally respond at the hearing to the information contained in the PRISMS records regarding his history of enrolments, and did not seek additional time to comment and respond.

20. The applicant did not provide any evidence to dispute that he had not been enrolled in a registered course of study between 9 March 2016 and 20 October 2016.

21. The applicant stated that when he applied for a student visa to study in Australia he did not have any definitive plans to study for business qualifications.  The applicant had intended to study in Australia to learn English, which he believed would be useful on his return to Malaysia, because he wanted to find “better jobs”. 

22. In respect of the applicant’s employment and educational history prior to arriving in Australia, the applicant had left High School in Malaysia, and had not studied at a tertiary level in Malaysia.  Prior to 2012 the applicant had worked as a machine operator in a factory.  Between 2012 and 2014, the applicant had worked in sales position in a telecommunications business, with duties that involved assisting customers to register for residential internet.

23. The Tribunal asked why the applicant had applied to study for a package course leading to an Advanced Diploma of Business if the applicant had no clear plan to use such qualifications when he returned to Malaysia.  The applicant replied that his main intention was to obtain qualifications in English and live in an English speaking country to improve his job prospects when he returned to Malaysia, and that the reason he enrolled in the package business course initially (rather than an English course) was that his migration agent advised him the course would be “simple”.

24. The applicant had enrolled in a General English course at Times Academy, with the course commencing on 14 November 2016 and ending on 14 April 2017.  The applicant showed the Tribunal his student card from Times Academy at the hearing.  The applicant stated that he received a letter from the education provider “half way through” the course that his enrolment had been cancelled.  The applicant did not know why it had been cancelled, but thought the reason may be because his student visa had been cancelled.

25. The Tribunal asked the applicant why he had not enrolled in any registered course of study since 14 April 2017.  The applicant replied that he believed that because he was on a bridging visa after the cancellation of his student visa (while his appeal to the Tribunal from the decision to cancel his bridging visa was on foot) he could not study.  The applicant had obtained no advice from any migration agent or the Department of Home Affairs regarding the conditions of the bridging visa, and whether such conditions prevented him from enrolling in a registered course of study.

26. The Tribunal asked the applicant about his work activities and personal circumstances in Australia.  The applicant stated that he had been working in the construction industry in casual jobs since April 2017. 

27. The applicant stated that his wife resides in Australia on a Subclass 457 visa.  The applicant and his wife married in Australia in February 2017, and have no children.  Pursuant to the conditions of that visa, the applicant stated that his wife works at a bakery and her “sponsorship contract” under that visa expires in February 2020.

28. The Tribunal asked the applicant about his circumstances in Malaysia.  The applicant stated that his parents (who are aged in their early 70’s) reside in Malaysia, and he has 1 elder brother and 3 sisters who reside in Malaysia.  The applicant’s brother “runs” the telecommunications business that the applicant worked in prior to arriving in Australia.  When asked what impediments or reasons were there (if any) for the applicant returning to Malaysia such as there being any reasons why the applicant could not return and work again in his brother’s business, the applicant stated that his wife’s “contract” did not end until February 2020 and if he was forced to return to Malaysia he would be separated from his wife who would remain in Australia.

29. In respect of his intentions regarding future study if the visa was not cancelled the applicant stated he would apply to study a further English course and complete that course, because he had only completed half of the previous General English course he had been enrolled in.

30. In addition to the PRISMS records, prior to the hearing the Tribunal had obtained a copy of movement detail records setting out the applicant’s travel to and from Australia.  No information was contained in the movement records adverse to the applicant or inconsistent with the evidence given by the applicant at the hearing.

    Evidence of the Applicant’s wife

31. The applicant’s wife gave evidence that she was the holder of what she described as a “two year working visa” and that she had signed a contract with a “Chinese person” who operated a bakery shop for a period to 7 February 2020.  The applicant’s wife stated that she and her husband would suffer hardship if his student visa was cancelled, as he would return to Malaysia and she would remain in Australia until her contract had expired.

    Conclusion-Has the Applicant complied with Condition 8202(2)?

32. 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

33. 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’.

    Purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or remain in Australia

34. The evidence of the applicant is that his purpose in coming to and staying in Australia was to study.  The Tribunal accepts that the applicant did complete some components of the package course in business studies, completing the Certificate II and Certificate III components of the course.  I also accept that the applicant enrolled in and partially completed a General English (Beginners to Advanced) course commencing on 14 November 2016.  The Tribunal gives these factors some weight towards the visa not being cancelled.

35. However, the applicant’s evidence was that he had no genuine interest in studying the package business course that he had originally been enrolled in, nor any clear plan how he would use such qualifications upon completion of the course.  The applicant has also not been enrolled in any registered course of study for a significant period of time.  The applicant stated that his genuine interest was in obtaining English qualifications, but the applicant has not enrolled in a registered course of study in respect of English or any other subject since the cancellation of his enrolment in the General English course.

36. The applicant’s evidence that he believed that he could not enrol in a registered course of study after cancellation of his student visa is given little weight, as no evidence was provided of such a condition, nor did the applicant seek advice regarding that issue.  The conduct of the applicant is not consistent with the applicant having a genuine intention to study.

37. The applicant states that a relevant consideration in respect of his need to stay in Australia is that his wife his here on a Subclass 457 visa until February 2020.  However, the Tribunal gives this matter little weight, because the applicant’s wife may choose to return to Malaysia with her husband in any event, and even if she chooses not to do so and she can lawfully remain in Australia until February 2020, the period of physical separation will be relatively short, and the applicant and his wife may remain in contact by telephone and internet.  Further, the applicant and his wife do not have any children.

38. Having considered the evidence on this discretionary consideration, the Tribunal satisfied that the weight of evidence is not in favour of the applicant.

    Extent of compliance with visa conditions

39. There is no evidence that the applicant is in breach of any condition of his bridging visa since the cancellation of his student visa, and the Tribunal gives this factor some weight towards the visa not being cancelled.

40. However, the period of non-enrolment prior to cancellation was for a significant period of time (over 7 months). 

41. Having considered the evidence on this discretionary consideration, the Tribunal is satisfied that the weight of evidence is not in favour of the applicant.

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

42. The evidence of the applicant on this issue is that hardship would be caused if the visa was cancelled because the practical effect of that outcome would be that he and his wife would be separated for a period of time, as he would return to Malaysia and she would remain in Australia until February 2020.  Further, there would be hardship because the applicant had not completed the General English course before the education provider cancelled his enrolment.

43. The Tribunal accepts that there may be some hardship to the applicant. However, this must be weighed against the seriousness of obtaining a student visa to study in Australia and then breaching the condition of enrolment for the period between 9 March 2016 and 20 October 2016.  There also was not evidence of any valid reason why the applicant could not study in Malaysia if he chose to do so, and if the ability to speak and write English was a significant reason why the applicant chose to study in Australia, the applicant has had the benefit of residing in an English speaking country for almost 5 years, assisting him to acquire such skills irrespective of whether or not he had graduated in a registered course of study in English.

44. Further, any hardship by reason of the applicant and his wife being separated in the period until February 2020 is mitigated by the ability to keep in contact by telephone and by the internet.  The applicant’s wife may also chose to return to Malaysia with her husband; or may choose to visit him in Malaysia in the period until February 2020 subject to any conditions regarding travel on her visa.  There was no evidence provided by the applicant that his wife was unable to travel back to Malaysia from time to time on her Subclass 457 visa.

45. Having considered the evidence on this discretionary consideration, the Tribunal is satisfied that the weight of evidence is not in favour of the applicant.

    Circumstances in which the grounds of cancellation arose

46. The applicant stated in his response to the NOICC that the relevant circumstances in which he ceased to be enrolled in a registered course was that he found the package course in business too difficult after completing the first two components of the course, due to his poor English skills; and the education provider; other students; and his migration agent did not provide assistance.  The applicant then ceased to study until he was “transferred” to an English course.

47. Such circumstances are not extenuating.  It is not an unusual circumstance that a student studying in Australia may have difficulties with the English language and many (if not most) international students face the same challenge.  However, the evidence of the applicant regarding what he did to obtain assistance so that he could continue to participate in the business course and remain enrolled was vague.  There is little evidence as to what actual measures the applicant took, if any, to cease enrolment in the business course and immediately commence enrolment in an English course, so that the condition of his visa that he remained enrolled in a registered course of study was complied with.  The applicant also was not enrolled for a significant period of time in respect of the period from 9 March 2016 and 20 October 2016 (over 7 months).

1. Having considered the evidence on this discretionary consideration, the Tribunal is satisfied that the weight of evidence is not in favour of the applicant

   Past and present conduct of the visa holder towards the Department

2. There is no evidence before the Tribunal to indicate any adverse conduct by the applicant to the Department, and as such the Tribunal gives this discretionary consideration some weight in favour of the applicant.

   Whether there would be consequential cancellations under s 140

3. The evidence of the applicant to the Tribunal was that his wife resided in Australia not as a dependent upon his student visa, but independently by reason of her Subclass 457 visa.

4. Accordingly, this discretionary consideration is not relevant.

   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

5. There was no evidence before the Tribunal to indicate that the applicant may face any mandatory legal consequences should he return to Malaysia.  Whilst cancellation may put limits on the ability of the applicant to apply for further visas, this is the intended operation of the provisions.

6. The Tribunal gives this factor no weight towards the visa not being 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

7. The applicant gave no evidence to indicate that there was any reason he could not return to Malaysia that would result in Australia’s international obligations being breached if the visa remained cancelled.  I give this factor no weight towards the visa not being cancelled.

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

8. The visa under consideration is a temporary visa.  Accordingly, this discretionary consideration is not relevant.

   Any other relevant matters

9. There are no other relevant matters.

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

    DECISION

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

    Gregory Sarginson
    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.