Kim (Migration)

[2021] AATA 1540

Kim (Migration) [2021] AATA 1540 (25 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sangmin Kim

CASE NUMBER:  2001903

HOME AFFAIRS REFERENCE(S):          BCC2019/4944526

MEMBER:Meredith Jackson

DATE:25 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 25 March 2021 at 3:34pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered Higher Education course ceased – applicant repeated requisite English language course – limited academic progress – return visit to Korea – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 48, 116, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 did not comply with a condition of his visa which requires that he 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. The applicant appeared before the Tribunal on 25 March 2021 to give evidence and present arguments. 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

3. 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?

4.    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 full time registered course: 8202(2)(a)

·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

5.    In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a full time registered course; and the grounds to cancel the visa outweighed the reasons not to.

6.    The visa under review was granted on the basis of his enrolment in a Bachelor of Contemporary Arts starting 8 January 2018 and due to finish on 31 December 2019. On 21 August 2018, departmental records show the applicant notified the cessation of his studies. The applicant has not had study rights since his visa was cancelled on 24 January 2020. Therefore the period wherein the applicant was not enrolled as required is between 21 August 2018 and 24 January 2020, a period of more than 16 months.

7.    The applicant does not dispute that he was not enrolled during the period above.

8.    Tribunal is satisfied the applicant was not enrolled in a full time registered course for a period of more than 16 months while he held the visa. Accordingly, the applicant has not complied with condition 8202(2)(a).

Consideration of the discretion to cancel the visa

9.    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 Procedural Instruction ‘General visa cancellation powers’.

Background

1. The applicant is Sangmin Kim, a Korean national. He first came to Australia in 2009 as the holder of a working holiday visa with an Industrial Design qualification from Gyeonggi College of Science and Technology. He began studying English in 2013 and then undertook a Diploma of Management and further English courses. In February 2016, he enrolled in but did not commence a Bachelor of Design at the University of South Australia (UniSA). He claims he did not attain the requisite English language score. He continued to study English and then enrolled in a Bachelor of Visual Arts. This changed in March 2018 to a Bachelor of Contemporary Art. The student visa under review was granted on 7 April 2018 to enable him to study the Bachelor of Contemporary Art. In August 2018, the applicant decided to cease studying. He claims that he had failed some subjects and he talked with the institution’s counsellor about the difficulties he was having, and how he thought he should go back to Korea for a break. He claims the counsellor told him he could re-enrol at any time because he had a student visa. He stated at hearing that he now understands this move to have been a mistake, because it led to his visa cancellation. He claims that when on 2 January 2020, the department sent him a Notice of Intention to Consider Cancellation (NOICC) of his visa, he did not see the relevant email. He claims he did not receive any other form of communication from the Department. He did not respond to the NOICC and the visa was cancelled on 24 January 2020. Since being granted a Bridging (BVE) visa, he has not had study or work rights. He claims he wants to continue his degree studies because otherwise he will have wasted 10 years in Australia.

Oral and documentary evidence considered

1. On 24 March 2021, the applicant provided documents to the Tribunal in support of his case. They include, but are not limited to, evidence of his studies in Australia and Korea, a written statement concerning his circumstances, evidence of his residential history in Australia, employment references, copies of pencil artworks and other visual works, and a written statement concerning his study history. The Tribunal has also had regard to Department and Tribunal files, including the applicant’s study record in the Provider Registration and International Student Management System (PRISMS), a copy of which the Tribunal sent to the applicant on 23 March 2021, stating that it may be referred to in the hearing. On 25 March 2021, the Tribunal heard and considered oral evidence that the applicant provided at hearing, including evidence concerning his PRISMS record.

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 applicant came to Australia for the purpose of study. There was no other purpose besides studying. The applicant’s family are in Korea, he claims. He does not claim a compelling need to travel to or remain in Australia other than to complete his Bachelor degree.

The extent of compliance with visa conditions

1. The applicant claims he had always abided by his visa conditions. The Tribunal has no evidence before it that while he held the visa, until such time as he failed to maintain enrolment as described above, the applicant used the visa for purposes other than the basis on which it was granted. There is no evidence before the Tribunal that he may have breached other visa conditions while holding the visa or any previous or current visa. The Tribunal affords this light weight in his favour.

Circumstances that led to the cancellation

1. The cancellation arose because the applicant did not maintain enrolment in a registered course as required by his visa conditions.

2. In order to confirm the applicant’s enrolments and cancellations from the time of the grant of the visa under review; and confirm relevant aspects of his academic history in Australia since 2013; and to identify any issues that may arise from other information in his PRISMS record; pursuant to s 359AA of the Act, in the hearing, the Tribunal referred the applicant to information about him in PRISMS. The Tribunal explained the information, which mainly concerned the date he ceased being enrolled, and explained its relevance to his case. The Tribunal stated that the information might be the reason, or part of the reason to affirm the delegate’s decision. The Tribunal stated that PRISMS provided a chronological record of the applicant’s academic history in Australia, that is, information about his enrolments, commencements, cancellations and course finish dates. The Tribunal had not made up its mind about the information. The Tribunal gave the applicant time to study the record. The Tribunal asked if he wished to seek further time. The applicant stated that he had studied the record when it was sent to him, understood it and its relevance, and would comment on the information immediately.

3. The applicant confirmed that the record appeared to be correct.  The Tribunal referred the applicant to the date of 21 August 2018, the date recorded for when he notified cessation of his studies in the Bachelor of Contemporary Art. The Tribunal said this date preceded the issuing of the NOICC by several months and asked the applicant whether he had notified the university of an intention to cease studying. The applicant responded that shortly before ceasing to study, he had held discussions with a university counsellor about difficulties he was having with the course and explained that he needed to take a break to go back to Korea. The applicant said he was struggling because he did not have many friends at the university; he is a very shy person; he is not confident speaking and making presentations, even in his own language, so he was not confident about studying.  He stated that the counsellor told him he could re-enrol at any time; that he had a student visa. After he withdrew, he did not travel to Korea. He took the break onshore, but he did not comprehend that failing to remain enrolled would mean he would breach his visa conditions and lead to the cancellation. He claims he received no correspondence from the university regarding the change of plan.  When in January of 2020 the Department emailed him about the consideration of visa cancellation, he missed the email, because he rarely heard from the department and was not expecting anything. Then the Department notified him that the visa was cancelled. He feels desperate now, because he has always been a good student, and a good worker, as his references showed.

4. The Tribunal has considered the applicant’s claims about the circumstances leading to the cancellation, with a view to whether they were beyond his control and therefore may enliven the application of the discretion not to cancel the visa. The Tribunal concludes they were not and do not. It is difficult to be certain that the applicant did, or did not, miss the email containing the NOICC. There is no evidence before the Tribunal to support the applicant’s claim that he missed it: no protesting email to the department after the fact of the cancellation, for example, no note to his university about why it did not warn him of impending issues, and this raises a reasonable doubt that it is a genuine claim. The Tribunal considers that it is the applicant’s responsibility to convince the Tribunal he genuinely did not know about the NOICC, and he has not done so. The Tribunal’s doubts are deepened by the applicant’s testimony that his university did not explain the potential consequences to him of ceasing to study a course for which he had been granted a student visa. It is reasonable to consider that the university, as a major international education institution, is well versed in its own policy, role and obligations in this regard and communicates appropriately with its departing students. Further, the applicant has been enrolled since 2013 in at least 10 courses, and therefore has dealt with issues concerning enrolment and cancelled courses for seven or more years. The Tribunal acknowledges the claim he missed the email from the Department about the NOICC but notes he did not claim to have missed the following one concerning the cancellation. On the evidence before it, the Tribunal is not satisfied the applicant was unaware that withdrawing from his course would not imperil his visa. The Tribunal weighs these considerations heavily against the applicant.

The degree of hardship that may be caused

1. The applicant claims there will be severe consequences if he does not complete his degree. He claims that South Korea holds nothing for him, and he has been in Australia for 10 years. He is not aiming to settle here, he claims; if he completes his degree he will go back with qualifications. Speaking English well means he can get ahead there, but without degree qualifications, not so much; he will have wasted ten years. He dares not go home to South Korea at this time, because if he does, he believes he will not be able to come back, because of the pandemic related travel restrictions. In the meantime he is very upset. He has not been able to work for a year, and claims his psychological state is not normal. He has not provided detailed claims about his mental health, nor any supporting evidence of such. He lives with his former school friend and has supported himself from his savings. He does not wish to ask his parents for funds; they want him to stay and study. The Tribunal weighs these considerations in his favour.

Applicant’s past and present behaviour of the visa holder towards the department and Tribunal

1. The applicant’s history with the department is that he did not respond to the NOICC but has otherwise cooperated with the department, which the Tribunal weighs in his favour.

Whether there are mandatory legal consequences

1. The applicant has not raised the issue of legal consequences arising from the cancellation. However the Tribunal has considered the likely impacts of legal consequences in the case. The Tribunal accepts that if the applicant is forced to leave Australia, he will be prohibited from applying for most visas while he is onshore and, in those circumstances, will be barred for applying for Australian temporary visas for three years from the date of the cancellation. Further, he may be subject to detention if he does not engage with the department after visa cancellation and voluntarily depart Australia.

2. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately, he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include student visas. Consequently, this limits the visa applications the applicant can make whilst onshore.

3. No information is before the Tribunal that a cancellation outcome would breach of any of Australia’s international obligations and the Tribunal affords this consideration no weight. There are no other relevant issues.

Conclusion

1. The Tribunal has carefully considered all the applicant’s claims and evidence and weighed its considerations in the case accordingly. The Tribunal does not consider the combined weight of the individual elements that it weighs in the applicant’s favour, or any of those elements alone, to be sufficient to justify setting aside the delegate’s decision. Therefore, having regard to all the evidence before it, and balancing the matters in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s student visa.

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

DECISION

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

Meredith Jackson
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (1)      The holder must be enrolled in a full time course of study or training if the holder is:

   (a)a Defence student; or

   (b)     a Foreign Affairs student; or

   (c)      a secondary exchange student.

   (2) A holder not covered by subclause (1):

   (a)      must be enrolled in a full time registered course; and

   (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

   (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

   (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.