JUNG (Migration)

[2019] AATA 3448

JUNG (Migration) [2019] AATA 3448 (29 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HYUNWOONG JUNG

CASE NUMBER:  1703762

HOME AFFAIRS REFERENCE(S):          BCC2016/4316479

MEMBER:Justin Owen

DATE:29 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 July 2019 at 5:00pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – motivated to work rather than study – degree of hardship – impact on wife and daughter – 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 27 February 2017 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).

2. The applicant is a national of South Korea born 8 July 1983.  His Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa was granted on 23 October 2015 and was subject to condition 8202.  The visa had a stay period with a stay period until 2 September 2017.  On 7 February 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he had ceased to be enrolled in a registered course since 27 May 2015.  The applicant failed to respond to the NOICC.  On 27 February 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.      

3. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202 (2)(a) of the visa.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 23 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. 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

7. 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?

8. 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).

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

10. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 27 February 2017. The decision record states that the Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had not been enrolled in a registered course of study since 27 May 2016.  At the time of the delegate’s decision of 27 February 2017 the applicant therefore had not been enrolled for a total of about 9 months. 

11. At the Tribunal hearing the applicant conceded in oral evidence that he had not been enrolled in a registered course between 27 May 2016 and 27 February 2017. 

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 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’

14. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia.

15. The Tribunal considers that the purpose of a Student visa is to enable the visa holder to study in Australia.  The Tribunal notes the applicant’s written submission of 16 July 2019 (T1, Folio. 35) that provided an insight into the applicant’s intentions. 

16. As outlined in his written submission to the Tribunal, the applicant first arrived in Australia on 4 December 2013 on a working holiday visa.  He eventually travelled to Queensland for work in Toowoomba and then in August 2014 to Emerald.  He was working as a chef.  The applicant writes that in November 2014 he was offered a full-time job by his employer Mr Seungh Lee.  The applicant says at this time Mr Lee advised him about a 402 training visa.  The applicant at this time decided to accept the job.  Almost a year later in September 2015 the applicant claimed he received a refusal letter from the delegate for his 402 training visa application.  After receiving this the applicant returned to South Korea. 

17. Almost immediately the applicant applied – in October 2015 – for a Student visa which was granted to the applicant on 23 October 2015.  The applicant in his submission writes he was meant to commence his studies in November 2015.  The applicant claims he was offered a full-time job by Mr Lee in Emerald and was told by Mr Lee that he would apply for a 457 visa immediately so the applicant could commence working for him.  The applicant claims he put his trust in Mr Lee who he says told him he didn’t need to attend any of his studies as he was going to apply for a 457 visa immediately.  The applicant said that Mr Lee cancelled his enrolled course.  The applicant writes that his education provider never contacted him so he believed his course termination had been approved.  He said he was unaware of any problems until the Department contacted him in February 2017.  The applicant writes the business he was working for was forced to shut down and, after receiving treatment for back pain, he commenced contacting agents in pursuit of an enrolment in a cookery course in March 2017.  The applicant said he was unsuccessful in obtaining an enrolment due to the cancellation of his visa. 

18. At the hearing the applicant nevertheless claimed study was his purpose for travelling to and staying in Australia.  He pointed out that if his motivation wasn’t study then he could have simply applied as a dependent on his wife’s Student visa.  He said his wife was studying business with a Student visa that did not expire until March 2021. 

19. The applicant said he would still like to study commercial cookery in Australia before returning to work in his wife’s family restaurant which he states has been operating for over a century. 

20. The Tribunal is not satisfied on the evidence before it that the purpose of the applicant’s travel to and stay in Australia is to study.  The Tribunal is of the firm view that the applicant’s travel to and stay in Australia has principally been for employment purposes.  Today, with his wife having given birth to a child (which the Tribunal is, for the purposes of this decision, prepared to accept is the child of the applicant’s) the applicant’s purpose is also to care for his wife (particularly in regard to assisting her after her injuries from a motor vehicle injury in 2018 (T1, Folio.36-43) and their child.

21. From the written and oral evidence the applicant provided the Tribunal, the Tribunal is of the firm view that the applicant’s decision to apply for a Student visa was for the purposes of gaining entry to Australia so he could resume working for Mr Lee in his restaurant.  On the evidence the applicant was offered a full-time job which he wished to accept.  After having his 402 training visa refused he simply made a further application for a Student visa which was granted.  The applicant admits he never attended and completed any of the Diploma of Management and Certificates II and IV in Business (as outlined in the decision record) he enrolled in.  The applicant’s motivation to return to Australia – via a Student visa – was to engage in full-time employment. 

22. The Tribunal notes the applicant’s claims that his employer Mr Lee made various claims to him that he didn’t need to study as he was applying for a 457 visa now he had returned to Australia on a Student visa.  The Tribunal does not consider this mitigates the failure of the applicant to maintain his enrolment in any way as he had been granted a Student visa for the purposes of study.  A Student visa is not an employment visa and it does not exist to provide an avenue for the applicant to return onshore to Australia to once again seek a visa so he could return to full-time employment.   The Tribunal furthermore notes that the applicant only commenced seeking enrolment in a course of study after being notified by the Department and after Mr Lee’s business had closed down.  The evidence of such attempts is negligible: the Tribunal says that is because he was making telephone calls to Korean migration agents he claims were making these inquiries.   The Tribunal does not on the evidence before it consider the purpose of the applicant’s travel to and stay in Australia was for the purpose of study.   The Tribunal is not convinced by any claims made the applicant that he maintains a desire to study in Australia and does not therefore consider he has a compelling need to remain in Australia for the purposes of study. The Tribunal notes the applicant’s claims he made various attempts to reenrol in a course of study but in the absence of any corroborative evidence of such attempts gives the claim no positive weight.  The Tribunal notes that even if this was the case, the applicant only attempted to contact these institutions after he received notification his visa was to be cancelled and after his full-time employment had ended.  The Tribunal is not satisfied that the purpose of the applicant’s travel to and stay in Australia is and was for study. 

23. The Tribunal acknowledges the applicant now has a wife and child in Australia.  The Tribunal accepts the applicant’s wife was injured in a motor vehicle accident and he is providing some assistance with looking after their young child both through his employment and his help around the house with their daughter.  On the evidence before it the applicant’s partner however is on a temporary Student visa.  She does not have permanent residency.  Given neither the applicant nor his partner are Australian citizens or permanent residents, their child is not an Australian citizen.  The applicant’s wife and child are free to return to South Korea with the applicant if they so desire.  The Tribunal does not consider the applicant has a compelling reason to remain in Australia on a Student visa.   

24. If the applicant’s wife and daughter were to remain in Australia should the applicant be compelled to return offshore, the Tribunal accepts there may have been a degree of difficulty for both his daughter and wife from both a financial and emotional perspective.  The Tribunal notes however his wife and partner holds a temporary visa granted for a purpose of study which she is currently deferring.  The applicant’s wife and their daughter can remain in Australia if the applicant’s wife so desires or return to South Korea with the applicant. The Tribunal does not consider that these reasons represent a compelling reason for the applicant to remain in Australia.       

25. On the evidence before concerning the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor in favour of cancelling the visa.

26. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. 

27. There Tribunal notes that the applicant has been non-compliant with Condition 8202.    The Tribunal notes the applicant’s claims he was unaware he was in breach of the conditions of his Student visa due to the lodgement of a 457 visa application after his arrival back in Australia in October 2015.  The Tribunal does not however accept this claim: the Tribunal is unconvinced that the applicant was unaware of the obligations and conditions attached to his Student visa and does not accept his claims that, due to the apparent lodgement of a 457 visa application, he believed he was somehow absolved from all the conditions attached to the Student visa that had granted him entry to Australia.  The Tribunal notes at the hearing the applicant admitted he was aware that a condition of his Student visa was that he remain enrolled in a registered course and the letter he received outlined the conditions of the visa and the consequences of non-compliance.  The Tribunal furthermore notes the applicant’s testimony that he was working full-time for Mr Lee whilst residing in Australia on a Student visa.  The Tribunal considers this to be a breach of the work conditions that are attached to Student visas.  These are not employment visas.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.

28. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family should his Student visa be cancelled.  

29. The Tribunal raised with the applicant his claimed daughter.  According to the copy of a NSW Birth Certificate supplied to the Tribunal, the applicant’s claimed daughter is around seven months old and was born at Royal Prince Alfred Hospital in December 2018 (T1, Folio. 32).  For the purposes of this review application the Tribunal accepts that the child is the daughter of the applicant.  The applicant said he lives with his wife and their daughter.  The applicant claimed his wife due to the injuries she sustained in the motor vehicle accident needs assistance.  He said that his wife cannot hold their baby for longer than ten minutes at a time and was suffering back pain from the accident.  He said that she is seeing a GP and her physiotherapist regularly as well as a psychologist once a month for Post-Traumatic Stress Disorder.    He said that in terms of income they were living off his wages and the ongoing compensation payments she received as compensation for the injuries she sustained in the accident.  The Tribunal asked the applicant what his wife would do if his visa was cancelled.  He said she needed to remain in Australia in order to continue receiving her compensation payments.  He also stated that, whilst she was currently on a deferral in her studies, she was still to complete her courses and had a Student visa that was valid until 2021.  The applicant furthermore claims he and his partner each have no family residing in Australia. 

30. The Tribunal has carefully considered the hardship that might be caused to the applicant’s wife and his daughter should his visa be cancelled. 

31. The Tribunal notes that the applicant’s partner is also currently residing in Australia on a Student visa.  Given neither the applicant nor his wife are Australian citizens or permanent residents, their daughter is not an Australian citizen.  The applicant furthermore claimed in oral evidence that the ultimate plan was to return to South Korea where he would work in his wife’s family restaurant.  The Tribunal nevertheless concedes there would be a degree of hardship caused to his wife and daughter should the applicant return to South Korea and if they wished to remain in Australia so his wife can continue receiving her compensation payments and should she wish to complete her studies.  The Tribunal does not however that there is no reason before the Tribunal why the applicant’s wife would not be able to recommence her studies in South Korea if she decided to return with her husband the applicant. 

32. The Tribunal does accept there is a degree of hardship imposed upon the applicant’s wife in relation to her studies.  Whilst she is currently deferring she does have a Student visa that allows her to remain in Australia enrolled in a course of study until 2021.  The Tribunal notes however that she would in all likelihood be able to utilise the studies she has already completed as advanced standing in a future enrolment.  She can seek enrolment in a course of study in South Korea if she returns offshore with her husband.  The Tribunal concedes there is a degree of hardship but does not consider it to be either significant or onerous. 

33. The Tribunal accepts that, should the applicant’s wife decide to remain in Australia to complete her studies rather than return to South Korea with her husband there may be a degree of hardship for both the applicant’s wife and daughter on a financial and emotional perspective.  The Tribunal notes however that this would be a decision that she has made to remain in Australia.  The applicant’s wife can make an informed choice.  The Tribunal furthermore notes that when her Student visa expires she will be required to nevertheless return to South Korea. 

34. The Tribunal has considered the hardship that may be caused to the applicant’s wife from a medical perspective.  The Tribunal accepts she is receiving a range of treatment for her injuries from the 2018 motor vehicle accident and acknowledges the applicant’s claims that he takes her to various medical appointments. The Tribunal notes that there is nothing to preclude the applicant’s wife from seeking medical care in South Korea should she decide to depart Australia and remain with the applicant.  The applicant’s wife is receiving financial compensation for her injuries so she can continue to receive treatment in Australia should she wish to remain.

35. The Tribunal has considered hardship that may be caused in relation to the assistance the applicant currently claims to provide his wife due to her injuries.  The Tribunal accepts the applicant’s wife will face a degree of hardship should the applicant be compelled to return to South Korea.  The Tribunal notes that however that the applicant’s wife can utilise the monies she is receiving as compensation to bring in external assistance to help her around the house.  Her family offshore and the applicant himself can provide financial support for the applicant’s wife for the provision of assistance if they so desire.  The Tribunal considers this may mitigate some of the hardship the applicant’s wife may face in this particular area. 

36. The Tribunal accepts there will be a degree of financial hardship for the applicant’s wife and daughter should he depart Australia and his wife and daughter remain.  The Tribunal nevertheless notes that the applicant’s wife and daughter can travel with him to South Korea if they so wish.  Furthermore if they decide to remain the applicant’s wife will continue to receive at least for a period of time financial compensation for her injuries.  The applicant can also send monies to his wife from South Korea if he so chooses.  The Tribunal acknowledges a degree of hardship the applicant’s wife and daughter may face if the applicant’s visa is to be cancelled but it does not consider it to be oppressive.  The applicant has no other family in Australia. 

1. The Tribunal has considered any hardship that may be caused to the applicant.  The Tribunal is not satisfied on the evidence before it that the applicant has or indeed had any genuine intention to study on his Student visa so it does not consider the loss of any future study opportunities to represent any particular hardship to the applicant.  The Tribunal notes his claim that he would like to study before returning to South Korea to work in his wife’s family restaurant but in the circumstances of this review gives the claim little positive weight. The Tribunal notes that if he does harbour a genuine desire to study then he can do so in South Korea if he so chooses. 

2. The Tribunal notes the applicant’s employment in Australia as a chef.  The Tribunal would point out that the applicant came to Australia on a Student visa with the purported focus on study.  The Tribunal accepts that the applicant might enjoy his employment and find some career value out of his work.  The Tribunal does not however consider the conclusion of this activity by the cancellation of his visa represents any particular or onerous hardship upon the applicant.  With his experience, the Tribunal considers the applicant will be well placed to seek employment as a chef in South Korea. 

3. At the hearing in response to the Tribunal’s questions as to the hardship cancellation would cause himself, the applicant stated he would feel guilty in relation to his wife and child.  The Tribunal accepts that the applicant would feel some guilt about the impact of the cancellation of his Student visa on his wife and child.  The Tribunal does not however consider his feelings of shame are particularly surprising or onerous given the circumstances. 

4. The Tribunal accepts the applicant will face emotional hardship in relation to not being with his wife and daughter should his wife decide to remain in Australia on her own Student visa and continue her studies.  The Tribunal considers however that this is a decision for the applicant’s wife to make in conjunction with the applicant.  The applicant’s wife is not compelled to remain in Australia.  She with their daughter can return to South Korea with the applicant if they so choose.  In such circumstances the Tribunal considers the hardship that might be faced by the applicant can be mitigated. 

5. The Tribunal notes the applicant’s claims he has made concerning treatment he has received in Australia for a sore back.  The Tribunal is confident that similar treatment will be available to the applicant in South Korea if he was to return.  The Tribunal does not consider cancellation of the applicant’s visa will cause him any particular hardship in this area. 

6. The Tribunal has taken into account the applicant’s claim in his written submission that he became depressed and wanted to commit suicide after being unable to secure an enrolment after his visa was cancelled.  The Tribunal asked the applicant at the hearing of he had sought assistance for such feelings.  The applicant claimed he hadn’t been able to afford any treatment.  He conceded he had no medical evidence concerning his mental state that precluded him from enrolling in a course of study.  The Tribunal gives his claim in the absence of any corroborative evidence no positive weight.   

7. The Tribunal, on the evidence before it considers the hardship that would be caused to the applicant to be limited. 

8. The Tribunal accepts that there will be a limited degree of hardship caused to the applicant and his partner should his visa be cancelled.  The Tribunal accepts that the cancellation may be disruptive to not only the applicant but his wife and child but notes that the applicant’s wife, as pointed out by the applicant, is also a South Korean citizen in Australia on a temporary Student visa for the purposes of study The Tribunal accepts there is some emotional and financial cost to both the applicant and his partner should his visa be cancelled but it does not consider this to be particularly onerous to either party or to their daughter.  The Tribunal has particular sympathy for the applicant’s wife in relation to her injuries, their treatment and her desire for assistance around the house but considers there is no reason why she will not be able to continue to receive treatment and obtain assistance either in South Korea or Australia.  The Tribunal accepts that should she return to South Korea because of the applicant’s visa cancellation and her desire for support then it may prove somewhat disruptive to her own studies and her own broader immediate plans. On the evidence before it concerning the degree of hardship that would be caused to the applicant and his family should his visa be cancelled, the Tribunal weighs this factor slightly in favour of cancelling the visa.

9. The Tribunal has considered the circumstances in which the ground for cancellation arose.

10. In his written submission to the Tribunal the applicant has outlined the circumstances that led to the cancellation of his Student visa.  The applicant wrote that he first arrived in Australia on 4 December 2013 on a working holiday visa.  He eventually travelled to Queensland for work in Toowoomba and then in August 2014 to Emerald.  He was working as a chef.  The applicant writes that in November 2014 he was offered a full-time job by his employer Mr Seungh Lee.  The applicant says at this time Mr Lee advised him about a 402 training visa.  The applicant at this time decided to accept the job.  Almost a year later in September 2015 the applicant claimed he received a refusal letter from the delegate for his 402 training visa application.  After receiving this, the applicant returned to South Korea. 

11. The Tribunal notes that almost immediately after his return to South Korea the applicant applied – in October 2015 – for a Student visa which was granted to the applicant on 23 October 2015.  The applicant in his submission writes he was meant to commence his studies in November 2015.  The applicant claims he was offered a full-time job by Mr Lee in Emerald and was told by Mr Lee that he would apply for a 457 visa immediately so the applicant could commence working for him.  The applicant claims he put his trust in Mr Lee who he says told him he didn’t need to attend any of his studies as he was going to apply for a 457 visa immediately.  The applicant said that Mr Lee cancelled his enrolled course.  The applicant writes that his education provider never contacted him so he believed his course termination had been approved.  He said he was unaware of any problems until the Department contacted him in February 2017.  As outlined in the decision record the applicant supplied the Tribunal, the applicant never responded to the Department’s NOICC and his visa was subsequently cancelled in late February 2017.

12. Based on the applicant’s evidence, the Tribunal is of the firm opinion that the applicant’s motivation for seeking a Student visa was for work rather than study purposes.  The applicant in his oral testimony attempted to shift a significant amount of the blame for the breach of his visa condition to his former employer Mr Lee.  The applicant stated that Mr Lee had told him that after arriving on his Student visa that he didn’t have to attend classes.  The applicant admitted he did not attend lectures.  The applicant said that Mr Lee had told him that he had visited the applicant’s college and terminated his enrolment. 

13. The applicant informed the Tribunal that Mr Lee had lodged his 457 visa application on his behalf after his arrival in Australia.  In response to the Tribunal’s questions he said Mr Lee simply used the same information the applicant had provided him in relation to lodging his previous unsuccessful 402 visa application.  The Tribunal noted the courses the applicant had enrolled in as outlined in the decision record.  The applicant said his ‘first plan’ had been to study but he had been ‘tempted’ by the offer of employment of Mr Lee who he said had sold the benefits of the 457 visa such as permanent residency.  The applicant stated that he believed in what Mr Lee had told him in relation to his visa: both that he was able to dispense with his studies and commence full-time employment for Mr Lee due to the lodgement of a 457 visa application. 

14. The Tribunal does not accept the applicant’s claims.  Despite his claims the Tribunal does not accept that the applicant was of the opinion that his obligations in relation to his Student visa essentially ceased after arriving in Australia due to the lodgement of a 457 visa application.  The applicant in his oral testimony conceded he was aware that a condition of his Student visa was that he remains enrolled in a registered course of study.  He admitted that when granted his Student visa he received a letter from the Department that outlined the conditions of his visa and the consequences of non-compliance.  The Tribunal is of the opinion the applicant was aware of the conditions attached to his Student visa but ignored them anyway in pursuit of employment in Australia.  The Tribunal notes that the applicant lodged his Student visa application almost immediately after his 402 visa application were rejected.  The Tribunal considers his behaviour reflects a determination to get back to Australia and commence his full-time employment with Mr Lee rather than return to Australia to engage in study.  The Tribunal furthermore notes that even if the applicant actually believed he was not in breach of his Student visa due to the lodgement of a 457 visa application, applicants are expected to be aware of the conditions attached to their visa.  The Tribunal rejects the applicant’s arguments in relation to his lack of knowledge and his naiveté concerning the requirements of his Student visa. 

15. The Tribunal notes the applicant’s claims he went to Emerald after his arrival in Australia on his Student visa to see his wife.  The Tribunal accepts the applicant wished to see his wife and accepts that alongside his desire for employment was another reason for seeking a visa.  There was no reason the applicant could not have seen and spent time with his wife whilst complying with the conditions attached to his Student visa.  As the applicant himself pointed out at the hearing, given the applicant’s wife was also studying on a Student visa, he could have applied for a visa as her dependent.  The fact remains that the applicant was granted a Student visa that gave him entry to Australia.  The Tribunal is of the belief that he applied for this visa not with the intent of studying but as a means to re-enter Australia and work full-time for Mr Lee.  His plan to almost immediately pull out of his studies and apply for a 457 visa highlight this intention.  The Tribunal furthermore does not accept the applicant’s arguments that he was foolish, naïve and unaware that he was in breach of his visa conditions until being contacted by the Department in 2017.  The Tribunal found the applicant to be an articulate, intelligent individual who it believes deliberately applied for a Student visa in the full awareness he was not planning to come to Australia for the purposes of study but instead to engage in full-time employment.  Student visas are for the purposes of study, not for gaining entrance to Australia to engage in full-time employment after a previous application was rejected. 

16. The applicant’s visa was cancelled because he did not maintain enrolment in a registered course of study at the higher education level.  The Tribunal is of the opinion the applicant applied for a Student visa as a means to gaining re-entry to Australia for the principal purpose of full-time employment.  His actions indicate he had no essentially intention of studying.  The Tribunal is aware he claims to have made some attempts to reenrol after receiving the NOICC in 2017 but notes this was after he received his NOICC and after his full-time employment ended in November 2016 due to his employer’s failed business. Such behaviour in the Tribunal’s opinion undermines the integrity of the Student visa system and treats the system with nothing short of contempt.  The Tribunal does not accept his assertions he had no idea he was in breach of the conditions attached to his visa.  Even if this was the case, non-awareness is not an excuse for non-compliance.   The Tribunal has considered the circumstances in which the grounds for cancellation arose and the applicant’s explanation of these circumstances.  The Tribunal weights this factor strongly in favour of cancelling the visa.

17. The Tribunal has considered the past and present behaviour of the applicant towards the Department.    

18. The Tribunal has considered the past and present behaviour of the applicant towards the Department.   The Tribunal notes however that the applicant failed to respond to the Department’s s.119 letter despite the Department contacting him prior to sending the NOICC to ensure it had the correct contact details and letting him know about the Notice.  The applicant claims he has met the other conditions of his visa.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

19. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

20. The Tribunal has considered whether there are 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 of the applicant’s visa.  There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations.  The Tribunal notes the applicant with his partner – who are both temporary visa holders - have a seven-month old daughter that was born in Australia.  The Tribunal notes however that both the applicant and the mother of the child are South Korean nationals without Australian citizenship or permanent residency and the child as a result has not acquired Australian citizenship.  The Tribunal considers that the best interests of the child in this review are to remain with her mother and father.  The Tribunal considers there is nothing precluding this from occurring.  Given both parents are holders of temporary visas with no right to remain in Australia permanently this can be achieved by the applicant’s wife and daughter departing Australia with the applicant.  If the applicant’s wife however decides to remain in Australia then the applicant will be at the latest reunited with his daughter at the conclusion of his wife’s Student visa in 2021.  The Tribunal notes that the applicant has also claimed his family plan is ultimately to return to South Korea to work in his wife’s family restaurant, suggesting the intention is for both his wife and child to also return to South Korea.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

21. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia.  He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia.  The Tribunal notes that the applicant, if he were to apply for a further Student visa offshore, will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a further Student visa for three years from this date.  The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

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

    DECISION

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

    Justin Owen
    Senior 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.