Chikonko (Migration)

Chikonko (Migration) [2019] AATA 1267 (12 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lawrence Chikonko
CASE NUMBER:  1727569
HOME AFFAIRS REFERENCE(S):           BCC2017/3230668
MEMBER:Dr Colin Huntly
DATE:12 April 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 12 April 2019 at 9:51am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – parents’ separation in Zambia – Australian citizen daughter – not primary caregiver of child – visa conditions relating to permission to work – business failed to comply with Australian Consumer Law – unsatisfactory and untruthful evidence to the Tribunal – length of non-enrolment – 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

This is an application for review of a decision dated 1 November 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 (the Act).
The applicant was granted a Subclass 573 Student (Temporary) (Class TU) Higher Education Sector visa on 19 July 2016.
The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study between 21 March 2017 and 17 October 2017, thereby breaching condition 8202(2) of the grant of the visa.
At the time of his application for review, the applicant provided the Tribunal with a copy of the delegate’s decision record, dated 1 November 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.
By letter dated 1 February 2019, the Tribunal invited the applicant, pursuant to s.359 of the Act, to provide written information about his enrolment status in a course of study in a registered course between 21 March 2017 and 17 October 2017. The invitation was sent to the applicant at the last address provided in connection with the review and advised that:
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The information was required to be provided before 15 February 2019.
On 14 February 2019, the Tribunal received an email message from the applicant in the following terms:
1)Between the periods 21st March 2017 to 17th October, 2017, I was not enrolled in a registered course.
2)(a) The circumstance that led to my visa cancellation was the fact that my parents were going through a divorce and the family was greatly affected. I was suddenly faced with the challenge of none of my parents not been able to pay my tuition fees for the period stated above.
(b)With the divorce, and as per Zambian tradition, the children and possessions should be split between the parents. However, neither my parents are willing to have me go with the other party. My father is not allowing my mother to take me neither is my mother allowing my father to take me due to the financial investment put in me by each parent. Such ties have caused loss of many children’s lives which I fear can happen to me if I returned back to Zambia.
(c)I have previously complied with granted visa conditions. I have never had a visa cancelled, neither have I had any records of visa problems in Australia and in general.
(d)If my visa is to be cancelled, I risk losing my 13 months daughter born in Australia because I am currently the main child supporter. I cannot leave Australia without my daughter, neither can I go to Zambia with her with the current situation.
(e)If I go back to Zambia, I will not be able to support the child financially and emotionally as I will not be able to find employment due to high corruption levels and I have not attained the qualification initially sought. I risk losing a child to poverty and family problems which can lead to loss of life.
The applicant attended a hearing with the Tribunal on 11 March 2019 to answer questions and present arguments. At hearing the applicant handed up copies of birth certificate registration documents showing that he was registered as the father of an infant female child, born to an Australian citizen mother. The applicant’s occupation is listed in this material as “business owner”. This hearing was adjourned until 20 March 2019 to allow the applicant to obtain additional corroborating material relating to his work history.
Following the hearing, the Tribunal referred to the “Australian Register of Business Names” maintained by ASIC to determine if the applicant had registered a Business Name in Australia. A person of the same name and contact details appeared from the Register, to be the owner of the Business Name “Lawrence Cheap Removals ABN: 37 728 359 535”. Reference to the internet, however, suggested that this business was owned and operated by a pictured individual named “Lawrence C. Boston”. This person, together with another two individuals were represented by photographs and the website contained information material to the effect that the business operated a fleet of eight trucks throughout Western Australia and had done so for a period of approximately eight years. No reference of any sort to the applicant appeared on this site.
On the basis of information contained in the applicant’s application for a fee reduction lodged with his application for review, the Tribunal reviewed the online website of the company “Index Logistics Pty Ltd. This company had been listed as the applicant’s employer in the fee reduction request that he had lodged with the Tribunal in his application for review. The Tribunal noted that the website design was identical to that of Lawrence Cheap Removals, and that the “Lawrence Cheap Removals” business logo also appeared on this website. In addition the individual identified as “Lawrence C. Boston” in the Lawrence Cheap Removals website was shown as the “Director” of Index Logistics Pty Ltd.
On 11 March 2019 the Tribunal wrote to the applicant, pursuant to s.359 of the Act, in the following terms:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
·You appear to be the registered owner of the business name “Lawrence Cheap Removals ABN: 37 728 359 535”. This business appears to have an established and on-going online presence at: aforementioned business details appear to relate to a business that was first registered on 19 March 2016
This information is relevant to the review because it is inconsistent with your assertion that you remain in Australia primarily for the purposes of pursuing the studies for which your visa was issued. It is also information that was not provided by you in response to the Tribunal’s previous letter requesting information dated 1 February 2019.
If we rely on this information in making our decision, this would be the reason or a part of the reason for affirming the decision.
You are invited to give comments on or respond to the above information in writing before your resumed hearing on 20 March 2019.
On 13 March 2019, the Tribunal received the following request for an extension of time to provide the requested information referred to above:
As you have requested for more information to be provided regarding Lawrence Cheap Removals, I wish to request for an extension to gather all relevant information.
On 14 March 2019, the Tribunal replied to this request in the following terms:
The Tribunal notes your request for an extension of time in which to respond to its request for information sent to you on 11 March 2019. The Tribunal has granted your request and advises that your response may be given to the Tribunal in person on 20 March 2019.
The applicant’s resumed hearing with the Tribunal from 11 March 2019 occurred, as advised, on 20 March 2019. The applicant attended on this date to answer questions and present arguments. During the resumed hearing, the Tribunal asked the applicant in simple terms, on two occasions, what precisely was the nature of his relationship with the company “Index Logistics Pty Ltd”. In answer to the Tribunal’s questions about the precise nature of his relationship with Index Logistics Pty Ltd, the applicant twice confirmed that he was employed by the company as a part-time truck driver. The Tribunal asked the applicant if he had any other relationship with the company and he stated that he did not.
During this portion of the hearing, the Tribunal asked the applicant if he could identify the actual persons pictured on the Index Logistics Pty Ltd website. The applicant stated that these persons were his friends, but declined to identify them when asked to do so.
During the resumed hearing, the Tribunal also invited the applicant to review and comment on the online website for the business “Lawrence Cheap Removals ABN: 37 728 359 535”. This was done by means of an accessible computer monitor in the hearing room. The applicant gave evidence that almost none of the information contained within the website was true. The applicant also conceded that this material was misleading. The Tribunal referred the applicant to relevant portions of the Australian Consumer Law in the course of this questioning, when the Tribunal attempted to find out the identities of the persons pictured on the website.
The Tribunal also attempted, for the second time, to ascertain the applicant’s relationship status by reference to his lodgements with the Tribunal of rental agreements, his confusing evidence about his relationship with the mother of his daughter and his evidence at the hearing that he lived at the registered business for Lawrence Cheap Removals. Despite close questioning, the applicant was unable to provide a coherent and credible account of these matters.
On 21 March 2019, the Tribunal obtained a “Current & Historical Company Extract” for Index Logistics Pty Ltd from ASIC. This document indicated that the applicant was, and at all times had been, the sole shareholder of the company. Further, the document states that, at all times, the applicant had maintained the company’s place of business and registered address. There were three other natural persons who shared co-directorships with the applicant in this company, with one other natural person having historically also been a co-director. The Tribunal notes that this is materially inconsistent with the applicant’s sworn evidence to the Tribunal referred to above.
After this resumed hearing, the Tribunal wrote to the applicant on 25 March 2019, pursuant to s.359 of the Act, in the following terms:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
1) At your hearing with the Tribunal on 20 March 2019, while you were under oath, you were asked what the nature of your relationship was with the company “Index Logistics Pty Ltd. You responded clearly and directly that your only relationship with that company was that you were a truck driver employed by them on an occasional, part-time basis.
Attached to this letter, you will find a “Current & Historical Company Extract” produced for the Tribunal by the Australian Securities & Investments Commission for “Index Logistics Pty Ltd, ACN: 618 811 804” dated 21 March 2019. The Tribunal notes that this record lists you as maintaining the Company’s Registered Address. The record also lists you as one of five current Directors of the Company, in addition to being the Company’s sole shareholder.
The Tribunal notes that the related website “indexlogistics.com.au” includes similar or substantially identically misleading information about this company. Importantly, the Tribunal notes that this website appears to have been taken down since your hearing with the Tribunal on 20 March 2019.
2) The Tribunal also refers you to the information that was put to you in our letter dated 11 March 2019 about “Lawrence Cheap Removals ABN: 37 728 359 535” and the related on-line presence at “lawrencecheapremovals.com.au”. The Tribunal notes that, besides acknowledging at hearing on 20 march 2019 that most of the information on this website is false or misleading (including as to personnel identified on the website), and acknowledging personal responsibility for this, you provided no additional information in response to the Tribunal’s concern.
The Tribunal notes that this misleading website remains online, and its misleading content has not been corrected as at the date of this letter.
The foregoing information is information, which if accepted, would be the reason or a part of the reason, for affirming the decision that is under review. This is because your claims to be in Australia validly under a Subclass 573 Higher Education Sector visa may not genuinely be held by you. Further, this information suggests that you may have knowingly made false statements to the Department and the Tribunal in connection with both your response to the Notice of Intention to Consider Cancelling your Visa, your application for review by the Tribunal and the related application for a reduction of your fees in connection with that application for review.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 9 April 2019. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
On 9 April 2019, the Tribunal received the following email reply from the applicant:
When the department checked Lawrence Cheap Removals website in my presence on the 20^th March, 2019 during the hearing, my response to the question as to why there was a model picture of someone else other than me lacked more detailed explanation from me as there are many reasons I could not say in the presence of the public. I was only informed that the hearing will be an open hearing when I arrived for my session, if I was told earlier about it, I would have preferred a private session with the Member. The fact that there was another member on training and two other strangers in the room, I was very uncomfortable and nervous and could not express myself better in explaining as there was a lot of personal questions been asked too in front of the two public individuals in the room. I would have preferred my partner to come in and be by my side more to support me mentally and emotionally if I was told beforehand, she waited outside the waiting area.
The reason why Member Huntly thinks the information is misleading is because I made some changes to the website to show a different person on the website other than me. The reason behind all that is due to all the racial attacks and people threatening to summon me to court because I am of colour and everything I did, whether right was always considered wrong. I have in the past received numerous emotionally hurtful racial remarks like:
·“Do not use this company, they will blacken your furniture.”
·“When the guys came, their appearance scared me and I felt intimidated.”
Always asked to produce police reports on most of the jobs I did. I used to receive many personal and hurtful fake negative reviews from people that I never did jobs for or ever called to book in a service.
I had to close down my google listing on two different occasions due to fake reviews because I am of African origin and I was always back and forth with google customer support asking them to remove the fake negative reviews, some were taken down, for some they could not because the whole process with google requires a lot of proving whether it’s a genuine negative review or not. It was then I decided to completely do away with Lawrence Cheap Removals google listing and close most of the advertising platforms that allow unfair and unreasonable people put fake reviews that affect the business. The fake reviews and racial remarks only stopped when I used a Caucasian face on the website. This created a better image for the business. I do apologies. Please find attached copies of what I could find regarding racial remarks. I cannot find all racial remarks in my emails as everything was lost when google and other platforms where deleted. Hard to believe that some people dislike people of African origin, I experienced it all the time before making changes to the website and I couldn't explain during the hearing due to racial content.
Lawrence Cheap Removals website is now down as it is about to be taken off the internet completely and the entire business closed and ABN cancelled with ASIC when all steps to closing down the business are followed.
I am titled as a company director for Index Logistics Pty Ltd but when I was asked what my nature of work was, I said I am a truck driver because in all honest, I drive a truck for work, I thought I was simply been asked what I do for work.
As a director for the company, there’s nothing much I do, I am the only one who is fully active in the company as other directors listed have other day jobs as the business is currently not making any profits, and as for me, I do part time truck driving with the company just to keep it going and for my financial survival.
Index Logistics Pty Ltd website was not deliberately taken down by me, the company currently has no funds to maintain the website, and this has contributed to the site been currently down.
It’s not what I meant to operate a business on a student visa. I did so to survive, as I was not receiving any financial support due to the difficulties I was going through with my parents’ divorce, I had to find means of survival rather than resorting to theft or becoming homeless in Australia like seen from people who have been through similar situations. I did not intend on migrating to Australia to be a business person. It was not my intention.
I am now very stressed about my family, my daughter and the company’s position and future in all this. Without me being part of the company, the company will close down and my daughter will have no financial support.
The Tribunal notes that it received no requests from the applicant for a closed hearing on the occasion of either hearing. In the absence of any such request, all migration hearings, other than protection hearings are held in public. The Tribunal also notes that, on both occasions, the applicant took an oath to answer truthfully at the commencement of proceedings and on numerous occasions elected not to answer the Tribunal’s specific questions. There is a material difference between refusing to answer a question and answering a question in a manner that the person providing it knows to be materially false.
The Tribunal notes that, at the hearing on 20 March 2019, it carefully put the contents of the Lawrence Cheap Removals website to the applicant and he acknowledged that they were misleading in substantially all respects. He also confirmed that it was he himself who caused this material to be placed on the web.

With respect to the company Index Logistics Pty Ltd, the Tribunal finds that the applicant has given false sworn evidence to the Tribunal with respect to its relationship with him in connection with the Tribunal’s consideration of his application for review. This is potentially relevant to the consideration of the extent to which the applicant has complied with his visa conditions and the related question of his past and present behaviour towards the Department. The applicant’s subsequent submissions relating to the circumstances within which this false sworn evidence was given are neither materially exculpatory nor sufficiently explanatory.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The Tribunal notes that the applicant applied for, and was granted, a period of compassionate leave from his Bachelor of Science degree program at the University of Western Australia effective from 26 August 2014 until 1 November 2014. This approved leave related to a submission made on 24 October 2017 by the applicant which he described in the following terms in his reply to the Department’s Notice of Intention to Consider Cancellation of his visa:
I was previously enrolled at the University of Western Australia. Before my enrolment was cancelled, I had a meeting with the international students office to discuss my current situation. I provided the University with all relevant supporting documentation which was hindering my university enrolment.
My parents overseas are on separation and it was very difficult for a single parent to pay my tuition fees. The separation led them to split resources and children between them. As the older male child each parent whats [sic] to keep me of which they have had differences about it. They resolved that if anyone parent took me, the other parent will not be in support and will have me not exist or kill to avoid anyone of them taking me.
At the first hearing before the Tribunal, the applicant confirmed that he re-enrolled in his Bachelor of Science degree program at the University of Western Australia in February 2016 and continued studying in that program until sometime before the end of 2016. The applicant stated that he did not resume his studies in 2017 and has not since that time recommenced any course of study. The applicant’s PRISMS record states that his course of study at the University of Western Australia was cancelled by that education provider on 21 March 2017. The applicant confirmed at the hearing on 11 March 2019, that he was not in fact enrolled in a registered course between 21 March 2017 and 17 October 2017.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course after 21 March 2017. Accordingly, the applicant has not complied with condition 8202(2).
Consideration of the discretion to cancel the visa
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 (PI) ‘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
The Tribunal notes the applicant’s response to the Notice of Intention to Consider Cancellation of the visa, referred to above. The Tribunal also notes the applicant’s response to its invitation of 1 February 2019 referred to above which was received by the Tribunal from the applicant on 14 February 2019. In particular the following:
2)(a) The circumstance that led to my visa cancellation was the fact that my parents were going through a divorce and the family was greatly affected. I was suddenly faced with the challenge of none of my parents not been able to pay my tuition fees for the period stated above.
b)With the divorce, and as per Zambian tradition, the children and possessions should be split between the parents. However, neither my parents are willing to have me go with the other party. My father is not allowing my mother to take me neither is my mother allowing my father to take me due to the financial investment put in me by each parent. Such ties have caused loss of many children’s lives which I fear can happen to me if I returned back to Zambia.
The Tribunal notes that this response is essentially the same as that provided to the Department in response to the Notice of Intention to Consider Cancellation of the visa, as follows:
I was previously enrolled at the University of Western Australia. Before my enrolment was cancelled, I had a meeting with the international students office to discuss my current situation. I provided the University with all relevant supporting documentation which was hindering my university enrolment.
My parents overseas are on separation and it was very difficult for a single parent to pay my tuition fees. The separation led them to split resources and children between them. As the older male child each parent whats [sic] to keep me of which they have had differences about it. They resolved that if anyone parent took me, the other parent will not be in support and will have me not exist or kill to avoid anyone of them taking me.
The Tribunal notes the inherent inconsistency in these responses. In particular the Tribunal notes that the applicant relied upon this rationale when seeking and being granted a deferment of studies application from the University of Western Australia in 2014. The Tribunal notes that the applicant was sufficiently recovered from the emotional trauma of his parent’s separation and divorce, and his financial circumstances were sufficiently certain to enable him to recommence his studies in 2016 for the majority of that year. Accordingly, the applicant’s explanation for his failure to continue studies beyond 21 March 2017 is not adequately explained by the applicant’s responses to either the Department’s questions or the Tribunal’s questions. The Tribunal therefore finds that the applicant has not provided an adequate explanation for his continued and extended failure to comply with the core requirement of his student visa.
The Tribunal also notes the following passage from the applicant’s written response of 14 February 2019:
d) If my Visa is to be cancelled, I risk losing my 13 months daughter born in Australia because I’m currently the main child support. I cannot leave Australia without my daughter, neither can I go to Zambia with her with the current situation.
e) If I go back to Zambia, I will not be able to support the child financially and emotionally as I will not be able to find employment due to high corruption levels and I have not attained the qualification initially sought. I risked losing a child to poverty and family problems which can lead to loss of life.
The Tribunal notes the confusing evidence given by the applicant relating to his domestic and residential arrangements in Australia. The Tribunal finds that the applicant is not ordinarily resident with the child referred to in the foregoing extract. The applicant has been recognised as the father of this child. However, the child currently resides with her mother and two stepsiblings. While the Tribunal accepts that the applicant has occasional contact with and supervision of this child and contributes to her maintenance, there is nothing before the Tribunal to suggest that the applicant is in any sense the primary caregiver to the child. Rather, the Tribunal finds on the evidence before it, that the child’s primary caregiver is its natural mother with whom it is ordinarily resident in Australia.
Given that the child in question was born in Australia to an Australian citizen, prima facie, this child also appears to be an Australian citizen. It is, therefore, not apparent to the Tribunal on what basis the child would necessarily be removed from Australia to Zambia in the event that the applicant’s visa was cancelled and the applicant returns to Zambia. The Tribunal notes that the applicant’s visa status was uncertain at the time in which the child in question was conceived. The Tribunal also notes the applicant’s sworn evidence at the first hearing that that the nature of his relationship with the child’s mother has, since 2015, been uncertain and the applicant has at all times maintained that he is not in a domestic relationship with the child’s mother. In terms of access to the child in question, while the Tribunal notes that the cancellation of this applicant’s visa may result in a temporary ban on the applicant from applying for another visa to enter Australia, there is no evidence before the Tribunal to suggest that the child in question would be unable travel to Zambia, or that at some point in the future, the applicant would be unable to visit the child in Australia.
The Tribunal is also mindful that the visa holder has elected to remain in Australia for an extended period of time without complying with his core visa requirements and, on the basis of the foregoing evidence discussed in this decision, the applicant’s circumstances appear to have changed considerably‑to the extent that he is pursuing business activities and opportunities in Australia to the exclusion of the core reason for his presence in Australia, which is for the purpose of studying a registered course.
On the basis of the foregoing considerations, the Tribunal finds that the purpose of the visa holder’s travel and stay in Australia is no longer principally for the purposes of study and the Tribunal can identify no compelling need for the applicant to remain in Australia under his present visa.
Accordingly these considerations do not weigh in favour of setting aside the decision to cancel the visa.
The extent of compliance with visa conditions
The Tribunal notes the written response of the applicant dated 14 February 2019 as follows:
c) I have previously complied with granted visa conditions. I have never had a Visa cancelled, neither have I had any records of these problems in Australia and in general.
As indicated above the Tribunal attempted at two hearings to determine the extent to which the applicant had complied with his visa conditions relating to the amount of work that he was permitted to engage in while in this country under the visa in question. The applicant assured the Tribunal at both hearings that he had complied with his visa conditions in this respect. The Tribunal at both hearings asked for corroboration from the applicant in support of this assertion by him. As at the date of this decision no corroborating evidence has been provided. The Tribunal outlined its concerns to the applicant relating to the business he was conducting in Australia under the business name “Lawrence Cheap Removals” and “Index Logistics Pty Ltd”. As discussed above the Tribunal finds the applicant’s evidence relating to these businesses to be unsatisfactory and untruthful. Given the applicant’s willingness to conduct business activities in this country that failed to comply with the Australian Consumer Law the Tribunal cannot be satisfied that the applicant has in fact complied with his visa conditions relating to permission to work.
On the basis of the foregoing considerations the Tribunal is not satisfied that the applicant has materially complied with his visa conditions.
The Tribunal places some weight on the applicant’s compliance with his visa conditions prior to 21 March 2017, but the Tribunal finds that this compliance does not outweigh the applicant’s non-compliance with his visa conditions after 21 March 2017.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal acknowledges the applicant’s concerns relating to the separation of his own parents and the impact that cancellation of his visa might have on his relationship with his natural child. The Tribunal notes that the applicant has provided no supporting evidence in the nature of counselling or clinical psychology reports to support any assertions relating to emotional disturbance caused by either of these matters.
The Tribunal notes the applicant’s written claims that he will face financial hardship if he were to return to Zambia. However, the Tribunal also notes the applicant’s sworn evidence at the hearing that his parents own a large and successful transportation company in Zambia which funds overseas studies for him and two siblings. In addition the applicant has proved himself to be a resourceful adult of full age and capacity, who is capable of supporting himself in a foreign country for an extended period of time. Accordingly, the Tribunal does not accept that the applicant would necessarily face particular financial hardship if he was to return to Zambia.
While the Tribunal has sympathy for the applicant’s circumstances as described above, the Tribunal notes that there are other visas that the applicant may apply for, such as supporting/contributing parent visas that may allow him the sort of access to his daughter to which he refers in his written response.
On the basis of these considerations, together with the matters already discussed above, the Tribunal finds that these considerations do not weigh materially in favour of setting aside the decision to cancel the visa.
Circumstances in which ground of cancellation arose
The Tribunal notes that the applicant has repeatedly referred to his parents’ separation and divorce in Zambia as reasons why his circumstances gave rise to this cancellation. The Tribunal finds that the applicant was able to manage a return to study for the majority of 2016 despite these considerations. Accordingly the Tribunal places no weight on these considerations.
The Tribunal notes that during the course of the first hearing, the applicant indicated that his parents in Zambia owned large transport company and that they were supporting the overseas studies of the applicant and his two siblings. According to the applicant there were assets available to the applicant’s parents and an ongoing business that was capable of supporting the studies of these three children from the relationship. These are matters that were not disclosed by the applicant in either of his written responses. Further, it was only after the Tribunal made its own enquiries and put this information to the applicant that the circumstances surrounding the applicant’s employment situation in Australia, and his own business ownership in Australia, were either acknowledged or explained (to the extent that they were) by the applicant.
The applicant’s lack of forthrightness, his partiality in providing information, and the extent to which his business activities were misrepresented to the public so as to conceal his true identity, all raise the question as to the extent to which the applicant’s representations relating to his personal circumstances can be considered to be reliable.
Accordingly the Tribunal has identified no credible explanation as to why the applicant ceased to remain in a registered course of study beyond 21 March 2017.
On the basis of these considerations the Tribunal finds that there is insufficient evidence to weigh materially in favour of setting aside the decision to cancel the visa.
Past and present behaviour of the visa holder towards the Department
The Tribunal notes that the applicant’s period of non-compliance with his visa conditions was substantial and the breach is, therefore, significant.
The Tribunal notes that the applicant has responded to all written notices from the Department and invitations from the Tribunal. The Tribunal also notes that the applicant attended both hearings before the Tribunal.
The Tribunal notes that the applicant in his fee reduction application lodged with his application for review failed to adequately explain the nature of his employment and materially misrepresented the nature of his domestic arrangements.
On the basis of these considerations the Tribunal finds that there is little that weighs materially in favour of setting aside the decision to cancel the visa.
Whether there would be consequential cancellations under s.140
The applicant is currently in Australia under a single person student visa with no named dependents who would be adversely affected in terms of consequential cancellations under s.140 of the Act.
Whether there would be mandatory legal consequences
There is nothing before the Tribunal to suggest any particular mandatory legal consequences as a result of the visa being cancelled, 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.
The Tribunal does note that the delegate in their record of decision made the following observations:
If the visa holder [sic] is cancelled then they will immediately become unlawful and may apply for a bridging Visa E, to rectify their visa status. The visa holder will have limited options to apply for further visas in Australia and may be required to return to their country of origin.
As an unlawful non-citizen the visa holder may be liable for detention under Section 189 and removal under Section 198 of the Act if they do not voluntarily depart Australia.
The Visa holder will be subject to Public Interest Criterion 4013, as a result of this cancellation, therefore they may not be granted a temporary Visa for three years from the date of the visa cancellation.
It is noted that all of the foregoing considerations are laws of general application and are materially identical to those laws that were applicable when the applicant applied for and was granted his visa application.
On the basis of these considerations the Tribunal finds that there is little that weighs materially in favour of setting aside the decision to cancel the visa.
Whether international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The applicant has provided inconsistent evidence about family circumstances in Zambia. The Tribunal notes that his reason for seeking a deferment of studies in 2014 was because of his parents’ separation and divorce. Despite this the applicant reengaged with his studies throughout 2016. The applicant has stated that the separation of his parents resulted in an intractable property dispute between his parents. However, the applicant’s oral evidence at the hearing was to the effect that his parents were able to support him and his two siblings with overseas studies by virtue of the fact that they had a large and successful transport business in Zambia.

The Tribunal notes that the applicant has remained in Australia on successive student visas since 2011 and returned to Zambia for four weeks in 2014. The Tribunal also notes that the applicant has not lodged a protection visa. In particular the Tribunal notes that there has been no lodgement of a protection visa by the applicant since this matter was specifically raised by the Department in its decision to cancel his student visa dated 1 November 2017.
On the basis of the foregoing, there is nothing before the Tribunal to suggest that the applicant genuinely holds a well-founded fear of persecution now or in the reasonably foreseeable future if he were to return to Zambia, or has any reasonable basis for suggesting that Australia’s non-refoulement obligations would be engaged if he were to be returned to that country.
The Tribunal notes that the applicant has specifically raised the best interests of his infant daughter in his written response to the Tribunal dated 14 February 2019 as follows:
e) If I go back to Zambia, I will not be able to support the child financially and emotionally as I will not be able to find employment due to high corruption levels and I have not attained the qualification initially sought. I risked losing a child to poverty and family problems which can lead to loss of life.
As discussed above, the applicant is not ordinarily resident with the child referred to in the foregoing extract. The applicant has been recognised as the father of this child. However the child currently resides with her mother and two stepsiblings. While the Tribunal accepts that the applicant has occasional contact with and supervision of this child and contributes to her maintenance, there is nothing before the Tribunal to suggest that the applicant is in any sense the primary caregiver to the child. Rather, the Tribunal finds on the evidence before it, that the child’s primary caregiver is their natural mother, with whom they are ordinarily resident in Australia. Nothing before the Tribunal suggests that these arrangements would necessarily be disrupted to a material extent by the cancellation of the applicant’s visa.
Given that the child in question was born in Australia to an Australian citizen, prima facie, this child also appears to be an Australian citizen. It is, therefore, not apparent to the Tribunal on what basis the child would necessarily be removed from Australia to Zambia in the event that the applicant’s visa was cancelled and the applicant returns to Zambia. The Tribunal notes that the applicant’s visa status was uncertain at the time the child in question was conceived. The Tribunal also notes the applicant’s sworn evidence at the first hearing that the nature of his relationship with the child’s mother has, since 2015, been uncertain and the applicant has at all times before the Tribunal maintained that he is not in a domestic relationship with the child’s mother. In terms of access to the child in question, while the Tribunal notes that the cancellation of this applicant’s visa may result in a temporary ban on the applicant from applying for another visa to enter Australia, there is no evidence before the Tribunal to suggest that the child in question would be unable travel to Zambia, or that at some point in the future, the applicant would be unable to visit the child in Australia.
On the basis of these considerations the Tribunal finds that there is little that weighs materially in favour of setting aside the decision to cancel the visa.
Other considerations
As discussed above, the applicant has acknowledged owning an Australian company and operating another business in a manner that is incompatible with the requirements of the Australian Consumer Law. He has also been found by this Tribunal to have made false statements under oath in connection with a review of his student visa cancellation.
This conduct of the applicant in these respects does not materially weigh in favour of setting aside the decision to cancel the visa.
Summary consideration
The Tribunal notes that the decision to cancel a visa pursuant to s.116 of the Act is discretionary. On the basis of the foregoing analysis and findings, the Tribunal finds that the considerations in favour of cancelling the visa are not outweighed by the considerations in favour of allowing the visa to stand.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Dr Colin Huntly
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.

[2019] AATA 1267

12 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice