CHEW (Migration)

[2019] AATA 1904

CHEW (Migration) [2019] AATA 1904 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lok Seang CHEW

CASE NUMBER:  1700994

HOME AFFAIRS REFERENCE(S):           BCC2016/3185904

MEMBER:Wendy Banfield

DATE:25 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 March 2019 at 3:56pm

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 – non-enrolment period of more than 12 months – vicissitudes of life – fundamental breach – 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 12 January 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 was not enrolled in a course of study from 10 October 2015 to 13 November 2016 and was therefore in breach of the conditions attached to his student 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.

Background

3.     The applicant is a citizen of Malaysia and is currently 31 years old. He was granted a Student Visa to study in Australia on 21 July 2015.  The applicant had been divorced in December 2014 and travelled to Australia after this event. He claimed to have still been suffering depression as a result of his divorce and experienced other personal problems during his stay in Australia. The applicant discontinued his studies a few months after arriving. The Department wrote to the applicant on 13 December 2016 notifying him of an intention to cancel his student visa. The applicant responded to the notice but the decision was made to cancel the visa.

4.     The applicant appeared before the Tribunal on 29 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

6.     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

7. 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?

8.     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).

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

10.      The applicant did not dispute that he was not enrolled to study for a period of more than 12 months, from 10 October 2015 to 13 November 2016. He advised he had come to Australia following his divorce and enrolled to study Human Resources and still wanted to study Business Management. However, on the evidence before the Tribunal, the applicant was not enrolled in a registered course for a significant period of time. Accordingly, the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

11.      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’

·    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

12.      The applicant had advised the Department that he was divorced in 2014 and decided to travel to Australia to further his education. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

13.      During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant did not make any claims in this regard. As such, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

14.      As such, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

·    the extent of compliance with visa conditions

15.      There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

16.      During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant claimed he would have regrets about not being able to continue studying in Australia. The Tribunal does not consider this to be a sufficient degree of hardship such that the visa should not be cancelled.

17. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

·    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

18.      The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for more than 12 months. The applicant submitted reasons for this; he had been divorced in 2014; his father was suffering from an illness and the applicant himself began drinking and became an alcoholic. According to the applicant, his father had a stroke and also had heart disease. A medical certificate was submitted to the Department in relation to the claim about the applicant’s father which the Tribunal accepts. A copy of the applicant’s divorce papers were also submitted to the Department. The applicant’s representative at the time advised the Department a psychologist’s report would be submitted but it appears no report was provided. There is no evidence available to the Tribunal to support the applicant’s claims of alcohol abuse or that he sought any type of treatment. In the circumstances it was open to the applicant to seek a deferral of his studies in order to deal with his issues but this did not occur. The applicant explained he did not return to Malaysia at the relevant time as he had been told it would be difficult to return if he did. The Tribunal does not consider this justifies the applicant having remained in Australia in breach of visa conditions.

19.      The Tribunal accepts the applicant experienced some personal problems; in particular, a divorce and his father’s ill health. Nevertheless, the applicant’s response to these matters was within his control. The issues faced by the applicant are part of the vicissitudes of life that most people encounter at some point. Although they are stressful events they are not adequate reasons for the applicant to stay in Australia while failing to comply with the conditions of his student visa including failing to study over a long period of time.  

20.      The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or seek a deferment of his studies during the period when he was not enrolled, in breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

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

21.      There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

·    whether there would be consequential cancellations under s.140

22.      There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

·    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

23. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be 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

24.      There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

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

25.      The Subclass 572 Student Visa is not a permanent visa.

·    any other relevant matters

26.      The representative made submissions regarding the applicant’s difficulties in re-enrolling to study. She said the colleges have strict policies that make it hard for students if they have a matter before the Tribunal. A letter of offer was provided at the hearing for the applicant to undertake a Bachelor of Business majoring in Management. The Tribunal had considered the submission but is not satisfied it is relevant to, or mitigates the applicant’s failure to comply with visa conditions prior to his visa being cancelled.

Conclusion

27.      The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

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

DECISION

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

Wendy Banfield

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.