Ip Kai Yuen (Migration)

[2018] AATA 4236

Ip Kai Yuen (Migration) [2018] AATA 4236 (20 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stevens Koy Chian Ip Kai Yuen

CASE NUMBER:  1618459

HOME AFFAIRS REFERENCE(S):           BCC2016/2969773

MEMBER:Mr S Norman

DATE:20 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 September 2018 at 12:40pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – enrolment in a registered course – claimed medical condition – significant period of non-enrolment – hospital admission – deferral of studies – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 October 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.  The delegate cancelled the visa on the basis that the applicant had been determined to have breached condition 8202(2)(a) (enrolment). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

2. By letter of 30 August 2018 (dispatched by email), the Tribunal issued the applicant a hearing invitation letter advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing at 10.00am on 20 September 2018. No response to the Tribunal’s hearing invitation letter was received. Two SMS hearing reminder texts were sent to the applicant’s mobile phone (on 13/09/2018 & 19/09/2018). Again no response was received at the date and time of this decision.  

3. In its above emailed letter of 30 August 2018, Tribunal advised the applicant that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

4. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

5. 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

6. 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?

7. 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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa on 6 August 2015. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 29 September 2016, the applicant was advised that it appeared he may not have complied with condition 8202 attached to his visa (enrolment). In particular condition 8202(2)(a) provides that a visa holder must continue to be enrolled in a registered course. The applicant was advised that based on the evidence available to the Department in the Provider Registration and International Student Management System (PRISMS), it appeared he had not been enrolled in a registered course of study since 13 October 2015. It therefore appeared that he was in breach of condition 8202(2)(a); and that his visa may be cancelled under s.116(1)(b) of the Act.

9. The delegate noted the applicant responded on multiple occasions to the NOICC letter. The delegate noted the applicant provided reasons why the visa should not be cancelled, however, the applicant did not dispute there were grounds for cancellation of that visa.[1] The delegate then cancelled the visa on 31 October 2016.

   [1] Department – folio 26.

10. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

12. The applicant stated his intention for travel to and stay in Australia was for the purposes of study. However, the PRISMS records indicated the applicant had not been enrolled in a registered course of study between 13 October 2015, and the date of the NOICC letter (being 29 September 2016). The applicant stated he had been unable to maintain academic progress due to medical conditions (discussed below). He still wished to ‘become one of the top chefs in Australia’. The applicant also said he was employed by the Retreat Garden (owned by a family member[2]) and his health is now stable. He said he would enrol in a registered course soon and would satisfy all the requirements and conditions of his visa. However in their decision, the delegate noted the applicant had not been enrolled in a registered course for around 12 months. The Tribunal notes the primary objective of a Student visa holder in Australia must be to remain registered and study in a CRICOS registered course, with no more than a two month gap. The applicant had failed to remain enrolled in a registered course in this case.

    [2] Department – folio 26 (reverse side).

13. Regarding the extent of compliance with his Student visa conditions, the Tribunal notes the applicant had not been enrolled in a registered course for around 12 months at the time of the delegate’s decision. The Tribunal believes this to be significant.

14. Regarding the degree of hardship, the Tribunal accepts that if the applicant’s visa is cancelled he or his family may suffer some financial or other hardship. He would also become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal I am not satisfied he would be subject to indefinite detention. Further I note he could temporarily retain his Bridging visa in order to remain in the community so as to finalise his affairs prior to departure.

15. The Tribunal also notes the applicant said he wished to continue to study to be a chef in Australia (though he also conceded he found the courses too expensive).  The Tribunal has had regard to same prior to finalising this decision.

16. The Tribunal notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013, meaning he could not be granted a temporary visa for three years from the date of cancellation.

17. Regarding the circumstances in which the ground for cancellation arose, by letter dated 24 October 2016, the applicant said that in the previous 12 months he had been admitted to hospital on several occasions; he was suffering depression, anxiety and lethargy; he had been “diagnosed with kidney stones and was admitted into emergency twice; corroborating evidence from a named medical practitioner and dated 5/10/2016 was provided[3] (as were other reports). The applicant also referred to pain in his back and neck.[4]

    [3] Department – from folio 19.

    [4] Department – folio 23 (reverse side).

18. In an undated letter to the Tribunal,[5] the applicant said he travelled to Australia with his brother and with whom he had lived; he moved away from his brother on 1 December 2015 and rented a room in Strathfield; he then found his circumstances very difficult and could not get enrolled in new courses; his parents and family were not able to provide him with enough support; his COE was cancelled; he was stressed about his school, money, work, lifestyle and not achieving what he had planned; he was proposing to enrol to become a chef however that was too expensive and he enrolled in a business course; he said he finished his first four courses and started his other four courses but could not finish due to hardship; his school failed to contact him even though he ‘intentionally remained away and absent’; he was not provided any ‘mail stating his COE was cancelled’; he ‘got sick’; he believes he issued an email to his education provider saying he was unwell, that he was contacted to provide his name and student ID, that he responded, but no further communications were received; upon receipt of the Department NOICC letter, he contacted the same education provider and they denied having received any email from him; when he then asked if he could obtain a new COE he was advised he owed the College $7000; when he sought to negotiate this he was told there was nothing that could be done unless he paid the money; he did not believe he was treated well by the College. He then said that then he “just got more depressed and (my personal opinion and word) been told and injecting and drug user”[6] (sic).

    [5] Tribunal – from folio 23.

    [6] Tribunal –folio 22.

19. In a further undated submission to the Tribunal,[7] the applicant referred to “forward head carriage, thoracic scoliosis spinal and more issues at the moment, wasn’t able to stay in a steady position (sitting and typing in front of the PC) for about 10 minutes, otherwise follows pain complication such as migraine, dizziness, muscular pain, brain stop to function normally et cetera”. He then said he believed his education provider attempted to hide evidence from him; that this evidence related to his attempt to seek a deferral from his education provider; the applicant then referred to what he understood had transpired but then considered that his “memory is still a bit foggy”; he believed he attempted to upload his medical documents with the school but was in “extreme pain and unable to move from his bed” at the time; after he received his NOICC letter, he attempted to obtain the aforementioned evidence but was not successful; due to “scam in junk mail, all his email got auto deleted every month and since then he was trying to recover all his emails that had been deleted so far in many different ways but without any success so far”.

    [7] Tribunal – from folio 33.

20. However, and given the applicant conceded his ‘memory was still a bit foggy’, the Tribunal is not satisfied he sought to defer his studies, or materially sought assistance from his College. The Tribunal is also uncertain how the applicant was able to work (including at a family business in Australia), if his claimed medical conditions were as serious as he claimed. Based on the evidence before it, the Tribunal is not satisfied the claimed medical conditions should prevent it from exercising its discretion to cancel the Student visa in this case. 

21. The applicant also lodged other evidence with the Tribunal, including a COE regarding a Advanced Diploma of Business course at the Bridge Business College P/L, commencement date 7 August 2017[8]; a COE for a Diploma of Business to be studied at the same College, commencement date 20 February 2017[9]; a Certificate III in Business at the same College, commencement date 11 January 2016[10]; a COE in Certificate II in Business, commencement date 29 June 2015[11]. However, and without more, the Tribunal is not satisfied this should prevent it from exercising its discretion to cancel the applicant’s Student visa.

    [8] Tribunal – folio 14.

    [9] Tribunal – folio 16.

    [10] Tribunal – folio 20.

    [11] Tribunal – folio 21.

22. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence there would be any consequential cancellations if the applicant’s visa is cancelled.  The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

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

    DECISION

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

    Mr S Norman
    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.