Jung (Migration)

[2017] AATA 2331

Jung (Migration) [2017] AATA 2331 (6 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Minhey Jung

CASE NUMBER:  1702146

DIBP REFERENCE(S):  BCC2016/4242712

MEMBER:Tigiilagi Eteuati

DATE:6 November 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 06 November 2017 at 8:20pm

CATCHWORDS

Migration – Cancellation - Student (Temporary)(Class TU) visa – Subclass 572 Vocational Education and Training Sector – Not enrolled in registered course – Did not pay fees – Did not complete courses – Lack of ability and desire to complete

LEGISLATION

Migration Act 1958, ss 116(1)(b)

Migration Regulations1994, Schedule 8, Condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 February 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant breached the condition of his visa to remain enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 31 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s girlfriend. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

4. 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

5. 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.

   Stay application

6. On the day before the hearing the Tribunal received notice that the applicant had changed his representative and a request for an adjournment of the hearing so that the new representative could obtain the Departmental files. On the same day, the Tribunal sent the representative a copy of all the documents held by the Tribunal relevant to the review application. The Tribunal indicated that it would decide on the adjournment application at the hearing. The Tribunal then received submissions from the applicant’s representative. At the hearing the Tribunal decided not to grant an adjournment.

7. The basis for the cancellation of the applicant’s visa was straight forward; he had not been enrolled in a registered course since May 2016. The representative was provided all of the documents held by the Tribunal relevant to the review and the representative provided submissions in relation to this issue. Those submissions were considered by the Tribunal prior to the hearing. The applicant’s representative did not appear at the hearing despite the Tribunal indicating that it may ask the representative to address the Tribunal on the adjournment application at the hearing.

8. The applicant indicated that he wanted an adjournment as he did not know what would happen at the hearing and wanted more time to prepare for the hearing. The applicant lodged his application with the Tribunal in February 2017 and had a migration agent representing him before he changed representative just prior to the hearing. He had ample opportunity to prepare for the hearing and to organise suitable representation. In addition, the Tribunal provided information to the applicant about the Tribunal hearings when the applicant was invited to attend a hearing on 12 October 2017. The Tribunal does not consider that the applicant would be prejudiced in any way by proceeding with the hearing.

   Did the applicant comply with Condition 8202?

9. 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).

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

11. The delegate found that the applicant had breached condition 8202 when his enrolment in a Certificate III in Business was cancelled on 25 May 2016. The applicant conceded that he had not been enrolled in a registered course since this time.

12. 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

13. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

14. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

15. When the applicant was first granted a student visa in June 2014 he was enrolled in a Certificate II in Customer Contact to be followed by a Certificate III in Business. He said that his enrolment in the Certificate II course was cancelled for unsatisfactory course progress and he did not commence the Certificate III course and his enrolment in that course was cancelled on 27 March 2015.

16. He then enrolled in a Certificate II in speaking and writing English in March 2015 to be followed by a Certificate III in English. Again, the applicant found the Certificate II course too difficult and failed to complete the course. His enrolment in the Certificate III was consequently cancelled on 26 May 2016.

17. The applicant was granted his most recent student visa on 26 November 2015. This was the visa that was cancelled. When his visa was granted, the applicant was enrolled in a Certificate III in Business. He said that he did not commence this course. Rather, he stayed at home and studied English online. His enrolment in the course was cancelled on 25 May 2016 for non-commencement of studies.

18. The applicant said that he did not receive emails from the education provider indicating that his enrolment would be cancelled for non-payment of fees. Similarly, the applicant said that he did not respond to the Notice of Intention to Consider Cancellation (NOICC) dated 12 January 2017 because he did not receive the NOICC before his visa was cancelled. He said that he did not receive either the warnings from his education provider or the NOICC before his visa was cancelled because he had provided the education provider and the Department with an email address which he did not use in Australia. The Tribunal notes that the applicant also provided this same email address to the Tribunal with his application for review.

19. In written submissions made by the applicant’s representative, Mr Paul Sadler, who did not attend the hearing, the applicant contended that the cancellation decision should be set aside because the education provider should have done more than send warnings about his non-payment of fees to the email address he had provided to the education provider. This argument is rejected. The applicant provided the email address to the education provider, the Department and the Tribunal as his contact email address. It was his responsibility to monitor his emails. His failure to do so was his alone and he can not legitimately expect others to be responsible for his failure to monitor the inbox of the email account that he had provided to the education provider and the Department as his contact email address.

20. The Tribunal raised with the applicant its concern that, because the applicant had admitted that he did not commence any courses since his visa was granted and did not pay the fees for his courses, he may not have the will or desire to undertake any tertiary courses in Australia. The applicant said that if his visa was reinstated that he would study hard.

21. The Tribunal raised its concern that because the applicant had not successfully completed any of the courses in which he had been enrolled in Australia and because he had failed to pay his fees for the most recent course, the applicant may not have the ability to successfully undertake a registered course in Australia. The applicant indicated that he was now serious about improving his English language skills and asked that he be given one last chance to study in Australia.

22. The applicant indicated that neither he nor his family would suffer hardship if his visa remained cancelled. However, he said that he and his girlfriend would have difficulties if he were not allowed to remain in Australia as his girlfriend was studying here. The applicant’s girlfriend gave evidence that if the applicant’s visa was cancelled in would cause her hardship because she would remain in Australia to complete her studies and would not return to Korea with the applicant.

23. The Tribunal finds that the applicant does not have the desire or ability to successfully undertake registered courses in Australia. The applicant’s lack of desire is evidenced by the applicant failing to maintain enrolment in his Certificate III course, his admission that he did not even commence the course and his failure to pay the fees for the course.

24. The applicant’s lack of ability to successfully undertake a registered course in Australia is evidenced by the fact that the applicant has been unable to successfully complete any course that he has been enrolled in since he was first granted a student visa in 2014.

25. The Tribunal is willing to accept that the applicant and his family members may experience disappointment that the applicant’s visa was cancelled before he was able to complete a course in Australia. The Tribunal is willing to accept that both the applicant and his girlfriend will suffer hardship as they will be separated as a result of the cancellation of the applicant’s visa. The applicant’s girlfriend has indicated that she is unwilling to return to Korea with him and will remain in Australia to complete her education. The Tribunal has also considered that, as the applicant’s visa has been cancelled, he may have to wait for some time to be granted another visa in Australia. However, any difficulties which the applicant now faces are of the applicant’s own making. It was the applicant’s responsibility to comply with the conditions of his visa and to inform himself of those conditions. The applicant had every chance to study the courses for which he came to Australia to study.

26. In any event, the Tribunal finds that the applicant’s lack of desire and ability to successfully undertake a registered course in Australia heavily outweighs any hardship that he, his girlfriend or his family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

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

    Tigiilagi Eteuati
    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.