Gang (Migration)

[2019] AATA 5461

Gang (Migration) [2019] AATA 5461 (28 November 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Ha Ram Gang

CASE NUMBER:  1706472

HOME AFFAIRS REFERENCE(S):          BCC2017/697779

MEMBER:  Lynda Young

DATE:  28 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 28 November 2019 at 5:12pm

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 – purpose of stay in Australia – change of intentions – compelling need to remain in Australia – viability of friend’s café business – distinguished talent in latte art – impact on sponsored work visa application – decision under review set aside

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

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 March 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).

2. The applicant’s visa, granted on 18 July 2013, was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), requiring the applicant to be enrolled in a registered course of study.

3. On 10 March 2017, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) under s.119 of the Act, on the basis it appeared he had not complied with visa condition 8202(2)(a) as, on evidence obtained from the Provider Registration and International Student Management System (PRISMS), the applicant had not been enrolled in a registered course of study since 6 October 2016. The applicant responded to the NOICC by email to the Department on 17 March 2017.

4. On 23 March 2017, the delegate cancelled the visa under s.116(1)(b) of the Act on the basis the applicant, in breach of visa condition 8202(2)(a), had not been enrolled in a registered course of study since 6 October 2016, and the grounds in favour of cancellation outweighed the grounds against cancellation.

5. The applicant applied to the Tribunal for review of the decision on 29 March 2017, and attached to his application, a copy of the Notice of Cancellation and the Decision Record (application). The issues in the present case are whether the ground for cancellation in s.116(1)(b) of the Act is made out, and if so, whether the visa should be cancelled.

6. The applicant appeared before the Tribunal on 17 April 2019 to give evidence and present arguments.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE
ISSUES

1. Under s.116 of the Act, the Minister may cancel a visa if he or he is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b).

2. Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8 to the Regulations.

0.       In this case, condition 8202 was imposed on the applicant’s student visa.

1. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires the applicant:

a. be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

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b.   has not been certified by his or his education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

c.   has not been certified by his or his education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

1. If satisfied the ground for cancellation in s.116(1)(b) is made out then, as the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa, having regard to matters specified in the Act or regulations that are required to be considered and all information relevant to the exercise of the discretion in the circumstances of the case, including matters raised by the applicant and matters of government policy.

2. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. Matters to which the Tribunal has regard in considering whether to exercise its discretion to cancel the applicant’s visa include matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, including:

a.   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;

b.   the extent of compliance with visa conditions;

c.   degree of hardship that may be caused (financial, psychological, emotional or other hardship);

d.   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;

e.   past and present behaviour of the visa holder towards the department;

f.    whether there would be consequential cancellations under s.140;

g.   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;

h.   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;

1. if it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

j.    any other relevant matters.

1. The issues for the Tribunal’s determination in this case are:

a. does the ground for cancellation in s.116(1)(b) of the Act exist?

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b. if the ground for cancellation in s.116(1)(b) of the Act exists, should the discretion to cancel the visa be exercised?

EVIDENCE ON THE APPLICATION

1. The evidence before the Tribunal on this application comprises:

a.documents on the Department’s cancellation file, relevantly, the NOICC and the applicant’s response to the NOICC, by ‘letter’ emailed to the Department on 17 March 2017

b.the application, including the attached Notice of Cancellation and the Decision Record;

c.the applicant’s evidence at hearing;

d.the applicant’s post-hearing submission dated 17 April 2019;
The NOICC

16.The Department’s NOICC issued 10 March 2017, notified the applicant it intended considering cancellation of his visa as, based on PRISMS evidence, it appeared he had not been enrolled in a registered course of study 6 October 2016, possibly breaching visa condition 8202(2)(a). The applicant was invited to provide his written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why his visa should not be cancelled, the matters the delegate would take into account in considering whether to cancel his visa, being those matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, and any other matter he considered relevant.

NOICC Response

17.In his letter emailed to the Department on 17 March 2017 in response to the NOICC, the applicant stated:

“Dear whom it may concern

My name is Ha Ram Gang and I have recently received a notification that my visa will be cancelled as I have breached the conditions.

I cannot deny that I have not breached the condition of student visa as I have studied until Oct 2016 because with the advanced diploma I have received throughout the studies, I was preparing to apply for the 457 visa.

My friend has recently started the café business last year September to work with me and sponsor me. However, preparation of the documents needed took a time, which has lead to this stage.

The documents I was preparing were such as extension of my passport as it was close to expiry date and I was told that when passport has less than a month of expiry date, it might affect the stage of applying the visa. I was also going through Ielts test and received 8.0 in Speaking, 6.0, Writing, 7.0 Reading, 8.0 Listening last year December. Meanwhile, my friend was organizing and preparing the documents to prove that his business can sponsor me.

My friend started this business to work with me and he believes that my skills in making coffee have potential to bring great result like Caleb Cha who is also Korean immigrant who lives in Melbourne and won 1st place in World Latte Art Championship 2015 representing Australia. Also many Korean baristas have performed really well in

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2016 Australian regional championships such as Aaron Shin in Melbourne who came 1st in Southen region (Victoria) and Chan Ho Hong who came 2nd in Brewers cup in Central region (NSW, ACT). My friend and I think we can achieve good results in coming year representing NSW and Australia if I receive a chance to stay here. Coffee is one of the most popular drinks to everyone and this can be shown by statistic of twitter that coffee is one of most mentioned tweets. I believe giving an opportunity to stay in Australia to someone who has potential to bring more attraction and represent Australia would be worth idea.

If I don’t receive the second chance to stay and apply for 457 Visa straight away and told to leave the country, I want to know if there are any possible ways that I can try to change the decision or extend the deporting time as my friend already have started the business and the main reason that he decided to proceed was because of me... I hope I can get some time to seek for someone who can replace me and I also wanted to know whether if it is possible for me to comeback to Australia after applying in Korea. If that is not possible, when will I be granted to come back to Australia as I have lived more than half of my life in Australia and I barely know anyone in Korea now...

I do apologise for causing the problem but if a chance is given, I will apply 457 visa ASAP and WILL NOT breach the condition again.”

Decision Record

1. The Decision Record provides, in summary:

a.    the applicant held a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa, granted 18 July 2013, expiring 15 March 2018;

b.    the Department’s NOICC was issued on 10 March 2017 as, based on PRISMS evidence, the applicant had not been enrolled in a registered course of study since 6 October 2016. In his 17 March 2017 response to the NOICC the applicant did not dispute there were grounds for cancellation, but provided reasons why his visa should not be cancelled. The delegate was satisfied there was a ground for cancellation;

c.     the applicant’s intended purpose of travel to and stay in Australia was stated in his visa application as study. The applicant’s claims in response to the NOICC, that the culmination of making preparations for a UC-457 visa application and subsequent delays in the necessary paperwork caused the cessation of his studies, is significantly different from the purpose for which his visa was granted.

d.    the extent of the applicant’s non-compliance in not having been enrolled in a registered course of study since 6 October 2016, was considerable;

e.    whilst acknowledging some hardship may be caused should the applicant be required to depart Australia and recognising the applicant claimed he had established himself in Australia and invested heavily in furthering his education and personal interests and would face undue personal hardship if his visa were cancelled, the delegate noted eligibility will exist for an application for a Bridging Visa E, which may allow a lawful presence in Australia to finalise outstanding matters;

f. the delegate accepted, if his visa were cancelled, the applicant would become an unlawful non-citizen and may be liable for detention under s189 and removal under s198 of the Act if he did not voluntarily depart Australia, and would be subject to s.48 of the Act, meaning he will have limited options if applying for further visas in Australia. Additionally, Public Interest Criterion 4013 would be applied, meaning the applicant may not be granted a temporary visa for three years;

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g.the evidence supplied in support of the applicant’s claims that the culmination of making preparations for a UC-457 visa application and subsequent delays in the necessary paperwork caused the cessation of his studies was insufficient to establish it as a substantive basis for remaining onshore without enrolment in a registered course of study for over five months, whilst not in compliance with his student visa conditions, not fulfilling the purpose of his student visa, not fulfilling the purpose of his travel to and stay in Australia, without any demonstrable intention to continue to study but instead intending to remain in Australia for the duration of his visa for the purposes of furthering his personal interests;

h.there was no information indicating any specific matters of relevance with respect to the applicant’s behaviour towards the Department;

1. there was no information indicating any there were any persons in Australia whose visas would or may be cancelled under s140 of the Act;

j.the circumstances of the applicant’s case were not such that would engage Australia's international obligations;

k.the delegate was satisfied the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

The Applicant’s Evidence at Hearing

1. Summarised, the applicant’s evidence at hearing was:

a.consistently with his response to the NOICC, the applicant’s enrolment had lapsed as a result of his intended application for a UC-457 visa (457), sponsored by his employer, Beez Knees;

b.he was awarded his advanced diploma in October 2016, and underwent further IELTS testing in December 2016 in preparation for reenrolment;

c.his friend, recognizing his talent, purchased a café business in September 2016 with the intention of sponsoring the applicant;

d.there were significant time demands in preparing his 457 application, including having to renew his passport and his employer arranging to become a sponsor;

e.prior to having all the paperwork together for his 457 application, his student visa was cancelled and he understood that, as a consequence, he could not apply for a 457 visa whilst in Australia and if he left Australia, he may not be able to return for three years;

f.the cancellation of his student visa had caused the hardship to his employer as he was only able to work 40 hours a fortnight and a portion of that time was taken up with his training of other baristas;

g.he had obtained significant notoriety as a barista since 2017 and had featured both as a winner and as a judge in barista competitions;

h.although he had initially come to Australia to study, and had studied up until October 2016, his intentions had changed, and his direction had changed, and he now intended to pursue his career as a barista. He had discovered his passion and talent for Barista whilst studying and found that work fulfilling;

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1. he recognized that his purpose for staying in Australia was no longer a purpose that was suitable for a student visa and had been making arrangements to apply for a visa that was suitable for his purpose, but issues with timing, including the withdrawal of a previous sponsor and the complexity of requirements for his sponsor, meant that events with the cancellation of a student visa had overtaken his intentions to apply for a visa more suited to his changed purpose;

j.    his friend has started the café business essentially to show-case the applicant’s talents and not for the applicant, his friend would not have invested his time and money into the business. If the applicant was required to leave Australia the business would be without essentially its purpose;

k.   his intention was to apply for the 457 visa and that remained his intention, and use his skills as a Brewster to bring further notoriety to Australia on the International barista ‘scene’;

l.    he whilst he understands now that he ought to have informed the Department about his change of plans in terms of study and business, he was naïve and inexperienced at the time and did not think the preparation of his application for the visa would take anywhere near the amount of time it did, and in any event thought that it would have been made well before the time the NOICC issued.

Applicant’s post-hearing submission dated 17 April 2019

1. Following the hearing, the applicant provided evidence of his awards and accomplishments as a barista pages from industry magazines, Instagram posts, web pages and awards certificates, including:

a.   1st place in 2017 Sanremo Latte art Competition (which was one of the biggest competition in Sydney on 2017 with approx. $4000 worth of coffee equipment as a prize);

b.   4th Place ASCA National Latte Art Championship 2018, Tuesday 29th May;

c.   2018 Food service show 'Pauls milk event': guest Barista as 4th place in Australian National Latte Art Championship;

d.   1st Place in 2018 biggest prize money competition (PowerBrew world championship) with 128 competitors from all around Australia, Hong Kong and China;

e.   2018 ASCA (Australian Specialty Coffee Association): Top 12 ranking before National Championship. 8th place Ha Ram Gang, 10th place Ju Young Kim (Trained by Ha Ram Gang);

f.    2019 ASCA (Australian Specialty Coffee Association): Top 12 Ranking before National Championship. 3rd place Alice Park (Trained by Ha Ram Gang) came 2nd place in the National Championship. 6th place Ha Ram Gang. 10th place Timothy Song (Trained by Ha Ram Gang). 16th place June Kim (Trained by Ha Ram Gang) who are also qualified to compete because Top 12 in Australia (excluding 1st in each region) can compete in the National; and

g.   2019 Powerbrew World Championship: (bigger than last year with more than 128 competitors from all around the world) - Judging with other world known baristas.

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DOES THE GROUND FOR CANCELLATION IN S.116(1)(B) OF THE ACT EXIST? Did the applicant comply with Condition 8202?

1. The applicant’s NOICC response does not deny he had not been enrolled since 6 October 2016, and that position was not altered in his evidence at hearing. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study after 6 October 2016. As a result the applicant failed to comply with visa condition 8202(2)(a).

2. Accordingly, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) exists.

3. As the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED? Consideration of the discretion to cancel the visa

1. 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.

2. 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

1. The Tribunal is satisfied the applicant’s original intention for his travel to and stay in Australia was for the purpose of studying. The evidence in the decision record to this effect is uncontradicted.

2. On the evidence before the Tribunal, the applicant was not enrolled in any course of study since 6 October 2016.

3. Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia. That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study. Taken in that context, the Tribunal finds the applicant’s failure to be enrolled in a registered course of study since 6 October 2016 is significant and weighs in favour of cancellation.

4. The Tribunal is not satisfied the applicant’s originally intended purpose for travel to and stay in Australia provides a compelling need to travel to and remain in Australia. Failing to be enrolled since 6 October 2016 is inconsistent with such need and the applicant has given no evidence suggesting his originally intended purpose for travel to and stay in Australia provides such need. The Tribunal gives this consideration weight in favour of cancelling the visa.

5. The applicant is, on his evidence at hearing, which is consistent with the evidence provided in his response to the NOICC, no longer in Australia for the originally intended purpose for which he travelled to Australia. He does not intend to study and has not

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studied since 6 October 2016. Rather, he is pursuing what appears to the Tribunal to be a promising career as a barista, and he is the prime reason his friend was motivated to purchase the café business by which the applicant is employed. The applicant’s evidence is, and the Tribunal accepts, that without the applicant and his skills, his friend would not have invested the significant amount required to purchase the café, and the café business and accordingly his friend’s financial interests would suffer significantly were the applicant not in residence (as it were). The Tribunal is satisfied the continuing success or at least viability of the café business for which the applicant works is to a significant extent dependant on the applicant plying his skills as a barista as an employee of that business, and provides a need for the applicant to remain in Australia. The Tribunal gives his consideration weight in favour of not cancelling the visa.

The extent of compliance with visa conditions

1. Other than his non-compliance with condition 8202(2)(a), there is no evidence before the Tribunal disclosing any instance of the applicant failing to comply with any conditions imposed on his visa. Although the evidence does not satisfy the Tribunal the applicant breached any other condition imposed on his visa, he was not enrolled in breach of visa condition 8202(2)(a) since 6 October 2016. The Tribunal considers that noncompliance is significant and weighs in favour of cancelling the visa.

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

1. The applicant’s evidence at hearing, which the Tribunal accepts, is the café business his friend started would, without the applicant, be essentially without its raison d’etre and as a result the business would suffer, possibly to the point of no longer being a viable trading concern. The Tribunal considers this specific hardship weighs against cancellation.

2. The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable for detention under s.189 and removal under s.198 unless the visa holder voluntarily departs Australia or holds a bridging visa. As a review applicant before the Tribunal is eligible for a Bridging E Visa which would remain in force for 35 days after the Tribunal makes its decision on the review application or the applicant departs Australia, whichever is the earlier, the Tribunal is not satisfied the applicant would immediately become unlawful or liable to detention or removal upon cancellation, or be caused any hardship as might otherwise result.

3. The Tribunal accepts cancellation would, under s48 of the Act, prevent the applicant validly applying onshore for further visas unless prescribed by r.2.12 of the Regulations as a class of visa for which a valid visa application can be made. As Subclass UC-457 sponsored work visas are not prescribed by r.2.12 of the Regulations, a valid application for a UC-457 visa cannot be made by the applicant whilst in Australia, unless cancellation of his student visa is set aside.

4. The Tribunal is satisfied cancellation of the applicant’s visa would prevent his re­entering Australia for up to 3 years as he may not meet the public interest criterion 4013.

5. The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs in favour of not cancelling the visa.

Circumstances in which ground for 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

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visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

1. The uncontradicted evidence before the Tribunal is that the applicant’s failure to be enrolled was the result of his preparation for an application for a 457 visa. The Tribunal finds the circumstances were circumstances wholly within the applicant’s control. Accordingly, the Tribunal weighs this consideration in favour of cancelling the visa.

Past and present behaviour of the visa holder towards the Department

1. There is nothing in the evidence before the Tribunal to suggest the applicant’s past or present behaviour towards the Department was adverse. The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

Whether there would be consequential cancellations under s.140

1. On the evidence before the Tribunal, there are no persons in Australia whose visas would, or may, be cancelled under s140. The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

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

1. The Tribunal is satisfied cancellation of the applicant’s visa would, in addition to preventing his re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013, limit his ability to remain in Australia but would not, whilst his Bridging Visa E remains in-force, result in his immediately becoming unlawful and liable to detention under s.189 of the Migration Act or removal under s.198 of the Migration Act.

2. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Migration Act, which significantly limits the classes of visa for which he may apply onshore, and would prevent the applicant making a valid application for a UC-457 visa onshore.

3. The Tribunal gives this consideration weight in favour of not cancelling the visa.

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

1. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

2. Non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in

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the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

1. On the applicant’s evidence at hearing, the applicant’s reason for remaining in Australia is to pursue his career as a barista. The applicant’s evidence as to problems he would be caused if he returned to his home country as a result of cancellation of his visa extend to financial hardship caused to both him and to his friends café business. Those matters would not attract non-refoulement obligations.

2. The Tribunal finds, in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

3. There is no evidence before the Tribunal that cancellation of the applicant's visa would result in Australia breaching any obligations regarding the best interests of children.

4. The Tribunal considers these factors weigh neither in favour of nor against cancellation.

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

1. The applicant’s visa is a not a permanent visa.
   Any other relevant matters

2. In his evidence at hearing, the applicant stated he wished to continue to compete nationally and internationally as a barista and if he were to remain in Australia, to do so as an Australian competitor, bringing renown to Australia and enhancing Australia’s reputation in that respect. The applicant’s evidence as to his awards, his profile and his abilities, which was supported with independent documents provided to the Tribunal post-hearing, establishes the applicant as a distinguished talent and a leader in his field. The Tribunal accepts this evidence, and accepts the applicant’s stated desire to use his talents to the benefit of Australia, should he be able to continue his barista work here.

3. The applicant cannot, however, make a valid application for a 457 sponsored work visa if his visa is cancelled. It is clear to the applicant and to the Tribunal that the purpose for which the applicant intends remaining in Australia is not a Student visa purpose. Whichever visa type may be the most suitable or desirable for the applicant’s purposes – the determination of which is expressly and entirely a matter for the applicant – cancellation of the applicant’s student visa and the effect of s48 of the Act may well mean the applicant will not be able to make a valid onshore application for a suitable visa. The Tribunal gives this consideration weight in favour of not cancelling the visa.

Conclusion

1. The Tribunal is satisfied the applicant genuinely intended applying for a 457 visa once it became clear to him that his intentions had changed from study to pursuing his passion and furthering himself as a barista. The Tribunal accepts that intentions change, and the applicant was taking steps to apply for a visa whose purpose was appropriate for his changed intentions. Although the applicant clearly failed to appropriately address the issue properly at the time he made his decision to cease studying, the consequences of

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the applicant’s failure to do so, that is cancellation of his visa and the imposition of s48 of the Act, will prevent the applicant validly applying for a 457 visa whilst he remains onshore, and the application of public interest criterion 4103 will potentially exclude him from Australia for three years if he departs. Either circumstance will result in the applicant’s barista talents not being available for the benefit of Australia, of the café business his friend purchased primarily relying on the applicant providing those talents for its benefit.

1. In the circumstances, the Tribunal considers the applicant should have the opportunity of making his 457 visa application without the impediment of cancellation of his student visa.

2. The Tribunal is accordingly satisfied the matters weighing in favour of cancellation of the visa are outweighed by the matters weighing against cancellation of the visa.

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

DECISION

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

Lynda Young
Member

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ATTACHMENT

Migration Regulations 1994

...

Schedule 8

1. (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.

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