KOO (Migration)

[2018] AATA 628

KOO (Migration) [2018] AATA 628 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr YOUNGSEOK KOO

CASE NUMBER:  1709399

DIBP REFERENCE(S):  BCC2017/810017

MEMBER:Tigiilagi Eteuati

DATE:6 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 06 March 2018 at 7:19pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course – Consideration of discretion – Limited academic progress – Lack of desire to undertake higher education course – Potential hardship does not outweigh grounds for cancellation

LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, Schedule 8, Condition 8202(2), 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 April 2017 made by a delegate of the Minister for Immigration 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 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 by telephone from South Korea on 23 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

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.

9. The delegate found that the applicant had not been enrolled in a registered course since 8 August 2016. This was admitted by the applicant and accords with records held by the Department. 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).

10. The Tribunal notes that after the hearing the applicant provided evidence that he had re-enrolled in a Bachelor of Commerce and completed semester 2 2017 at University of Queensland (UQ). This was done after his visa was cancelled in April 2017.

    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 to exercise its discretion to cancel the visa.

12. 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).

13. The applicant explained that when he was granted his last student visa in May 2016 he was enrolled in an IELTS preparation course to be followed by a Bachelor of Commerce at the UQ. The applicant said that he completed the IELTS preparation course but did not commence his Bachelor of Commerce course as he was not confident in his level of English language proficiency and therefore was not confident that he could successfully undertake the Bachelor of Commerce degree. His enrolment in the Bachelor degree was cancelled on 8 August 2016.

14. The applicant claimed that he enrolled in a Diploma of Leadership and Management with the Australian Business School (ABS) which he said that he completed successfully in April 2017. The applicant provided the Department with an unsigned offer of enrolment from ABS. The applicant provided no evidence that he had ever been enrolled in the course or that he had completed the course. This was despite the Tribunal giving the applicant’s representative an opportunity to provide evidence of study in 2017 after the hearing.

15. The applicant claimed that he re-enrolled with UQ in the second semester 2017 and completed the semester successfully. After the hearing the applicant’s representative provided the Tribunal with an academic transcript for the applicant from UQ which indicated that the applicant had completed three units towards a Bachelor of Commerce degree in the second semester of 2017.

16. The applicant explained that he had been granted his first subclass 573 student visa in 2012 and had commenced a Bachelor of Commerce degree with UQ in the first Semester of 2013. He said that he completed the semester successfully and this is evidenced in the academic transcript from UQ provided to the Tribunal after the hearing. The applicant said that he dropped out of the course in the second semester of 2013 as he found it too difficult and did not have the English language skills to be confident that he could pass the course.

17. Instead, he said that he that he spent the time in Australia afforded by his first visa completing an IELTS preparation course and Certificates III and IV in Business. The Tribunal notes that the applicant would have been in breach of condition 8516 of his first visa when his enrolment in the Bachelor of Commerce was cancelled in the second semester of 2013.

18. The applicant said that his visa was to expire in 2016 and so he applied for his second student visa which was cancelled for non-enrolment.

19. The Tribunal raised with the applicant its concern that, as the applicant had been granted higher education subclass 573 visas twice and on each occasion he had dropped out of the course, in 2013 after one semester and in 2016 before he had even begun the course, the applicant may not have the desire to successfully undertake a higher education course in Australia.

20. The applicant indicated that he had always planned to complete a Bachelor’s degree in Australia. He said that the issue has been that he lacked the English language skills and the confidence to successfully undertake a Bachelor degree. He said that during the period of his first visa he enrolled in courses of increasing difficulty so that he would be able to eventually enrol in and complete a Bachelor of Commerce degree. Similarly, with the most recent visa the applicant said that he had no confidence that he would be able to successfully undertake a Bachelor of Commerce course so he dropped that course and enrolled in a Diploma of Leadership and Management at ABS. He said that he has now completed that course and is confident that he can successfully complete the Bachelor of Commerce degree which he re-commenced in the second semester of 2017.

21. The Tribunal asked the applicant whether he or any members of his family would suffer hardship if his visa remained cancelled. The applicant said that he would not be able to gain entrance into a South Korean university because there were age restrictions on university entrance in South Korea. He said that if his visa remained cancelled it would negatively affect his job prospects in South Korea.

22. The applicant said that UQ had not told him that he would be breaching the conditions of his visa if he abandoned his Bachelor of Commerce course. He said that he approached his “study plan” in “his way” which he described as being a “step by step” approach.

23. The Tribunal has decided to affirm the decision to cancel the applicant’s visa.

24. As the applicant has been granted higher education subclass 573 visas twice and on each occasion he had dropped out of the course, in 2013 after one semester and in 2016 before he had even begun the course, the Tribunal finds that the applicant does not have the desire to successfully undertake a higher education course in Australia.

25. The applicant was supposed to begin a Bachelor of Commerce degree, a three year course, in 2013. If he had remained in his course and passed his units he would have finished the course by 2016. It is now 2018 and the applicant has not even completed 8 units, or a full year’s worth of units. Instead, during his first visa he dropped out of his Bachelor degree in breach of condition 8516 and enrolled in vocational courses.

26. Surprisingly, he was granted a second visa in 2016 to study a Bachelor of Commerce degree and this time he did not even begin the Bachelor of Commerce degree before his visa was cancelled. Instead, his enrolment in the Bachelor degree was cancelled and he claims to have undertaken another vocational course, this time a Diploma of Leadership and Management. The Tribunal does not accept that the applicant was ever enrolled in this course. The applicant did not provide the Tribunal with a COE for the course or any evidence that he completed the course despite the Tribunal giving him the opportunity to provide evidence of his study in 2017 to the Tribunal after the hearing.

27. The Tribunal considers the fact that the applicant completed three units in semester 2 of 2017 does not change its opinion that the applicant has no desire to successfully complete a higher education course in Australia. That is because the applicant only re-enrolled in the Bachelor program after his visa had been cancelled which suggests that he only re-enrolled to help his case for reinstatement of his visa. His dropping out of the Bachelor course twice prior to cancellation and his failure to be enrolled in any course from August 2016 until the second semester 2017 indicate that the applicant has no desire to successfully undertake a Bachelor of Commerce degree.

28. 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 Bachelor of Commerce in Australia. The Tribunal is also willing to accept that the applicant may have some difficulty enrolling in a University in South Korea. However, as the Tribunal has found that that the applicant does not have the desire to complete a degree course in Australia, allowing him to remain here on a student visa will only serve to delay his inevitable return to South Korea without a degree and may decease his likelihood of being admitted to a University in South Korea if he chooses to study there.

29. 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, the applicant was not permitted to remain unenrolled in Australia or to undertake only vocational courses and 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. It was not the responsibility of UQ to provide the applicant with migration advice. The applicant had every chance to study the courses for which he was sent to study and did not do so.

30. The Tribunal finds that the applicant’s lack of will to successfully undertake higher education course in Australia heavily outweighs all other considerations including any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

32. 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.