CHO (Migration)

[2020] AATA 5031

CHO (Migration) [2020] AATA 5031 (13 October 2020)

DECISION RECORD

DIVISION:

Migration & Refugee Division

APPLICANT:

Ms Seunghee Cho (‘First Applicant’)
Mr Jinyu Lee (‘Second Applicant’)

CASE NUMBER:

1834516

HOME AFFAIRS REFERENCE:

BCC2018/4044208

MEMBER:

Dr Jason Harkess

DATE:

13 October 2020

PLACE OF DECISION:

Melbourne

DECISION:

The Tribunal sets aside the decision to cancel the First Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa

The Tribunal has no jurisdiction in relation to the Second Applicant

Statement made on 13 October 2020 at 2:25pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) (Subclass 500) visa – not enrolled in registered course – 11 months duration – car accident – relied on education agent – International Convention on the Rights of the Child – best interest of applicant’s son to complete education in Australia – decision under review set aside

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 48, 116(1)(b), 140, 189, 198
Migration Regulations 1994, Schedule 8, Conditions 8202(2)(a), 4013

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

1. The First Applicant is a citizen of South Korea and is 46 years old. She seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 19 November 2018 cancelling her Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Second Applicant is also a citizen of South Korea. He is 14 years old and is the son of the First Applicant. His Subclass 500 student visa was cancelled following the delegate’s decision cancelling the First Applicant’s visa. He seeks review of the cancellation of his visa. However, no ‘decision’ was made in relation to his visa. His visa was automatically cancelled by the operation of law because he held his visa as a member of the family unit of the First Applicant.[1] Accordingly, there is no reviewable decision before the Tribunal relating to the cancellation of the Second Applicant’s visa

   [1] See Migration Act 1994 (Cth), s 140(1), which provides that, ‘[i]f a person’s visa is cancelled under section … 116 …, a visa held by another person because of being a member of the family unit of the person is also cancelled.’

Original Visa Grant

1. The First Applicant’s visa was granted on 11 October 2016. It was granted because a delegate of the Minister had determined that she met the primary criteria for the grant of a student visa.[2] The First Applicant’s student visa had an original expiry date of 31 July 2019. It provided for more than 33 months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study.

   [2] The primary criteria for the grant of student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

2. The Second Applicant’s student visa was granted as a consequence of the First Applicant being granted her visa and also because it had been determined that Second Applicant met the secondary criteria for the grant of a student visa.[3] As the son of the First Applicant, the Second Applicant’s student visa enabled him to remain in Australia for the duration of the First Applicant’s studies. As a school-aged minor, the Second Applicant was obliged to attend school while his mother undertook her full-time studies.

   [3] The secondary criteria are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.311 to 500.318.

Reasons for Cancellation

1. The First Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied with a condition of her visa. Specifically, it was found that the Applicant had failed to comply with that condition which required her to maintain enrolment in a registered course of study for the duration of the visa grant period. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the Applicant’s visa ought to be cancelled.

2. The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when she was notified that his visa had been cancelled on 19 November 2018.[4] By lodging her review application, the Applicant contends that the delegate’s decision to cancel her visa is neither the correct nor preferable outcome in this case.

   [4] Notification was given in accordance with s 127 of the Migration Act 1958 (Cth) and reg 2.55(3)(d)ii) of the Migration Regulations 1994 (Cth) by emailing the notification and decision record to the Applicant’s last email address known to the Minister on the date of the decision. By the operation of reg 2.55(8) of the Migration Regulations 1994 (Cth), the Applicant is taken to have received the notification and decision record on that date.

Issues for Determination by Tribunal

1. The first issue requiring consideration by the Tribunal is whether the grounds for cancellation under s 116(1)(b) of the Act is made out, namely whether the Applicant did not comply with a condition of his visa. If the Tribunal determines those grounds are made out, the second issue requiring consideration is whether the Applicant’s visa ought to be cancelled.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the application on 30 October 2019. The First Applicant appeared before the Tribunal by video link to give evidence and present arguments. She was assisted by her registered migration agent, Ms Youn Meng, who also appeared via video link. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

2. Towards the end of the hearing on 30 October 2019, Ms Meng expressed concern about the standard of Korean interpretation provided by the interpreter. Because of these concerns, the Tribunal convened a further video hearing which took place on 19 November 2019. A different Korean interpreter was used at the second hearing. The First Applicant and Ms Meng attended the second hearing and the Tribunal asked further questions of the First Applicant, which included reviewing the evidence that had been given at the first hearing. Neither the First Applicant nor Ms Meng expressed any concern about the standard of interpretation provided at the second hearing.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to cancel the Applicant’s visa ought to be set aside. In reaching its decision, the Tribunal has had regard to:

   (a)the delegate’s decision record;

   (b)the oral evidence of the Applicant given at the two hearings;

   (c)all written material filed by or on behalf of the Applicant before, during and after the hearing; and

   (d)other relevant documents on the Tribunal and Department files.

2. The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.[5]

GROUNDS FOR CANCELLATION

[5] The Tribunal notes that it is not required to make explicit reference to every piece of relevant information before it because not all relevant considerations will be material or fundamental in any given case. See Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, [30]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [49] (Bell, Gageler and Keane JJ); Shoukat v Minister for Home Affairs [2020] FCA 194, [25] (O’Callaghan J); Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Applicable Law

1. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted.

2. Condition 8202(2)(a) attaches to all student visas and creates a continuing obligation for the duration of the visa.[6] It requires the visa holder to maintain enrolment in a full-time registered course of study.

   [6] Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a). All standard conditions of visas issued to non-citizens, including Condition 8202, are set out in full in the Migration Regulations 1994 (Cth), Sch 8.

3. The imposition of Condition 8202(2)(a) draws attention to the fact that all student visas are issued for the specific purpose of studying on a full-time basis. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study, they are specifically prohibited from ceasing to be enrolled altogether. In that regard, Condition 8202(2)(a) is one of many student visa conditions designed to ensure that Australia’s student visa program is not abused.

Has the Applicant Failed to Comply with Condition 8202(2)(a)?

Delegate’s Allegations

1. In the delegate’s decision record, the delegate identified the period from 20 December 2017 to 19 November 2018 as the relevant period during which the First Applicant was said not to be enrolled in a full-time registered course of study. This amounted to 11 months during which the First Applicant was alleged to be in continuous breach of her visa.

2. The delegate’s findings were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[7] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. The PRISMS report obtained by the delegate indicated that the First Applicant had not been enrolled in a registered course since 20 December 2017.

   [7] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. On 12 October 2018 the Department of Home Affairs (‘the Department’) notified the First Applicant of its intention to consider cancelling her visa (‘the NOICC’). In accordance with s 119 of the Act, the NOICC:

   (a)gave particulars of the allegation that the First Applicant had not complied with Condition 8202(2)(a) of his visa;

   (b)gave particulars of the information obtained from the PRISMS database that founded the allegation;

   (c)informed the Applicant that not complying with Condition 8202(2)(a) constituted grounds for cancelling her visa; and

   (d)invited the Applicant to show the Department that those grounds did not exist or that there was a reason why her visa should not be cancelled.

4. The Applicant did not respond to the NOICC.

Evidence Given by Applicant at Hearing

1. At the hearing before the Tribunal on 30 October 2019, the First Applicant admitted that she was not enrolled in a registered course of study for the period 20 December 2017 to 19 November 2018 and, therefore, in breach of Condition 8202(2)(a) of her visa for that period.

Conclusion

1. Based on the material before the Tribunal, it is reasonably clear that the First Applicant did not comply with a condition of her visa. The Tribunal finds that the First Applicant did not comply with Condition 8202(2)(a) of her visa for the period 20 December 2017 to 19 November 2018. Accordingly, there are grounds for cancelling her visa under s 116(1)(b) of the Act.

CONSIDERATION OF DISCRETION TO CANCEL VISA

1. Having found that the First Applicant failed to comply with a condition of his visa, the Tribunal must proceed to consider whether her visa should be cancelled.

Relevant Factors

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. The matters that ought to be considered are specifically listed in PAM3 as follows:

   (a)the purpose of the First Applicant’s travel to and stay in Australia, including an assessment as to whether she has a compelling need to remain in Australia;

   (b)the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the First Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   (c)the extent of the First Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   (d)the degree of hardship that may be caused to the First Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   (e)the First Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

   (f)whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   (g)whether there are mandatory legal consequences arising from a decision to cancel the visa;

   (h)whether Australia has obligations under any relevant international agreements that would be breached as a result; and

   (i)any other relevant matter.

Circumstances

1. The First Applicant sought to explain the circumstances giving rise to her non-compliance with the Condition 8202(2)(a) at the hearing before the Tribunal. In summary, she explained to the Tribunal as follows:

   (a)She did not realise that she was not enrolled in a course for 11 months. She had relied on an education agency, whom she had paid, but they appear not to have enrolled her in a registered course of study.

   (b)She is living in Australia with the Second Applicant, who was only in Year 6 at the time and going to school, and had to care for him.

   (c)She suffered injuries from a car accident in Australia a few years ago and she has continued to suffer problems with her back, neck and should as a consequence.

2. Ultimately, the Tribunal does not accept the First Applicant’s explanation as to providing a satisfactory basis for excusing her from compliance with the essential condition of her student visa for such a lengthy period. Even accepting the First Applicant’s evidence relating to her ongoing health problems arising from the car accident, it is clear the she was able to study during this period but ultimately chose not to.

3. Insofar as the First Applicant suggested that she had studied during the breach period and completed assignments, the Tribunal rejects that evidence. The First Applicant provided no documentary material to the Tribunal that suggests she made any meaningful attempt to study during this period. This consideration weighs in favour of cancelling her visa.

Purpose of Applicant’s Stay in Australia

1. The purpose of the First Applicant’s stay in Australia was to study. That purpose was undermined as a result of her cessation of studies for a considerable period. While this factor weighs in favour of cancelling her visa, for reasons that become apparent below, the Tribunal considers that the First Applicant has a compelling reason to remain in Australia.

Extent of Applicant’s Compliance with Visa Conditions

1. Beyond the current visa condition breach, the Tribunal is not aware of any other instances of non-compliance with this visa or previous visas held by the First Applicant.

Hardship

1. The Tribunal has given consideration to the First Applicant’s expressed desire to remain in Australia. The desire in this regard relates primarily to the interests of her son, the Second Applicant, and the need to maintain continuity in his schooling in Australia.

2. The First Applicant stated to the Tribunal that her husband, the Second Applicant’s father, remains in South Korea. The First Applicant is the Second Applicant’s sole guardian while he continues his education in Australia. If her visa is cancelled, so too will the Second Applicant’s visa be cancelled by the operation of law. The Applicants would be forced to return to South Korea. The Tribunal accepts this will cause considerable disruption to the Second Applicant’s schooling and psychological well-being if that occurs. As the First Applicant stated, the Second Applicant’s schooling to date has primarily taken place in Australia. This factor weighs in favour of not cancelling the First Applicant’s visa.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the First Applicant’s past and present behaviour towards the Department. There are no matters of concern in this respect.

Other Visa Holders

1. The Second Applicant’s visa will be cancelled under s 140 of the Act if the First Applicant’s visa is cancelled. The potential burden that would be suffered by the Second Applicant would be great if he is forced to return to South Korea in circumstances where he has had no recent exposure to South Korea’s schooling system. He would, in effect, be punished for his mother’s breach of Condition 8202.

Legal Consequences

1. The Tribunal notes that if her visa is cancelled, the First Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting her options to apply for further visas from within Australia. She will also be subject to a three-year exclusion period where she will not be eligible to have any temporary visa application approved if she applies for a visa that requires Public Interest Criterion 4013 to be met.

2. The Tribunal considers this consequence to be unduly harsh in the circumstances of this case. Even though the Second Applicant may not be subject to the same restriction, if his mother is unable to stay in Australia as he completes his schooling, he may be unable to remain without her as his guardian. The Tribunal does not consider that the Second Applicant should be punished for the First Applicant’s breach of her visa in this regard. This factor weighs in favour of not cancelling the First Applicant’s visa.

International Obligations

1. The Tribunal notes that Australia is a signatory to the International Convention on the Rights of the Child. As such, consideration must be given to what is in the best interests of the child who, in this case, is the Second Applicant.

1. The Tribunal considers that, in accordance with his mother’s wishes, it is in the Second Applicant’s best interests that he be permitted to remain in Australia to complete his schooling. That would necessarily involve his mother being permitted to remain in Australia during that time. This factor weighs in favour of not cancelling the First Applicant’s visa.

Other Relevant Matters

1. There do not appear to be any other relevant matters material to the outcome of the present review application.

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the First Applicant’s visa should not be cancelled.

DECISION

1. The Tribunal sets aside the decision to cancel the First Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa.

2. The Tribunal has no jurisdiction in relation to the Second Applicant.

Dr Jason Harkess
Member