Kwon (Migration)

[2018] AATA 5508

Kwon (Migration) [2018] AATA 5508 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Iljung Kwon

CASE NUMBER:  1826549

HOME AFFAIRS REFERENCE(S):           BCC2018/270886

MEMBER:Ann Duffield

DATE:21 November 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 21 November 2018 at 1:35pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – enrolment cancelled for non-payment of fees – academic history – not enrolled in a relevant course for a continuous period of nine months – degree of hardship – 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 6 September 2018 made by a delegate of the Minister for Home Affairs 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 had not been enrolled in a relevant course of study was 6 January 2018 and hence was in breach of condition 8202 of the Migration Act. 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 20 November 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 who also attended the hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   BACKGROUND

6. The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review.

7. The applicant is a citizen of Korea born on 4 May 1988. He first arrived in Australia on 27 August 2013 on a working holiday visa. He subsequently departed and returned to Australia on a subclass 572 visa on 10 October 2014 and completed English for Academic Purposes course in December 2014. The applicant then completed a Diploma of Business on 29 January 2016 and a subsequent English language course on 6 January 2017.

8. The applicant departed Australia for a period of several weeks between 24 September 2017 and 5 October 2017. The notice of intention to cancel his student visa was sent to the applicant on 27 March 2018. The applicant made the following claims in response:

   a.He was not aware that his enrolment had been cancelled

   b.He has been ill for a long period of time with anxiety and other illnesses. He has provided some medical certificates dated from May 2016 for his wife and also a number of translated certificates indicating that his mother and father have medical conditions. He has provided evidence that he has been diagnosed with a particular condition and also fatty liver. He also claims that his brother has been suffering from various medical conditions and all these issues induced in him a mental condition such that he could not continue his studies. He maintains that these matters were outside his control.

   c.He claims that he did not receive the notice of intention to consider cancelling his enrolment from Spencer college dated 23 May 2017 or that he received the subsequent notice of cancellation.

   d.He claims that he enrolled in a Diploma of Hospitality Management course on 3 April 2018 with a commencement date of 9 April 2018. That course is for 12 months ending on 31 March 2019.

   e.On 21 August 2018 the applicant received another notice of intention to cancel his enrolment from Spencer College for failure to pay his fees. That enrolment was also subsequently cancelled.

   f.The applicant has subsequently enrolled in a further Diploma of Hospitality Management which commenced on 12 November 2018. The applicant states that he has not commenced this course because of his visa uncertainty.

   g.The applicant was married to Ms Youdam Moon on 7 November 2018. A copy of that marriage certificate is at Folio 59 of the Tribunal’s file. (it is not a certificate from the registry of births deaths and marriages).

   h.The applicant provided a number of statements from his parents and his wife supporting his claims and his application to remain in Australia.

   i.At the tribunal hearing the applicant provided a further confirmation of enrollment for a course starting on 3 December 2018.

9. The applicant provided a number of documents to the Tribunal including records of his enrolment, emails and contact from Spencer College in relation to his enrolment and failure to pay his fees.

10. The applicant claims that the education provider failed in the exercise of their duty to “accurately monitor the student’s course progress or attendance”. The applicant claims that whilst the college reminded him “relentlessly” of his failure to pay fees, they did not extend the same diligence to informing the applicant that his failure to comply would result in the cancellation of his enrolment. The applicant claims that the college only sent him a single email which he also claims that he did not receive. The applicant maintains that he was not aware that Spencer College cancelled his enrolment.

11. The applicant has, however, produced a log of some of the communications between himself and the college that indicate he was informed that his visa would be considered for cancellation if he did not maintain his fee payments. Equally, the applicant has had four previous enrolments cancelled by providers, including in October 2014, November 2016, May 2017 and August 2018 and it seems to the Tribunal that he would be aware of the requirements and conditions to maintain both a relevant enrolment and comply with his visa conditions. The applicant also provided the Tribunal with a record of an intervention strategy meeting between the college and the applicant relating to the applicant’s unsatisfactory course progress dated April 2018. When these matters were put to the applicant he maintains that he was never told that his visa was being considered for cancellation.

12. The Tribunal put to the applicant that it was finding it hard to accept that he would not have been aware that he was not enrolled as on his own evidence he had not attended classes, had not been in communication with the college and had not paid the fees. The applicant claimed that he was not told that his visa was being considered for cancellation.

13. The applicant claims that he has a passionate dedication to complete his studies and commence his working career to support his parents and his wife.

14. The applicant claims to be suffering from temporomandibular joint disorder and fatty liver issues and returned to Korea to receive treatment. He claims that this condition interrupted his studies.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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?

16. 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).

17. In the present case, the applicant’s visa was cancelled on the basis the applicant did not comply with conditions 8202 as he had not been continuously enrolled in a relevant course.

18. The applicant has enrolled in several courses over the period from his last attendance at a relevant course of study in January 2017, including one which was due to begin on 12 November 2018 but which he has postponed until 3 December. He has failed to consistently attend or to complete any of these courses and in relation to Spencer College has not even paid the relevant fees.

19. It appears that the applicant’s enrolment in each of the courses have been cancelled by the relevant college for failure to pay the course fees. In the Tribunal’s mind, the applicant’s academic history over the past almost two years does not demonstrate that the applicant has any intention of attending, let alone completing a course of study which is the purpose of his visa. When the Tribunal put this to him at the hearing he claims that he has been trying in many ways to obtain his degree including attending and completing some IETLS courses. He claims that he did not attend his last course because he was not confident in his English language skills.

20. The applicant has made a number of claims in relation to his health preventing his studies and blamed the college for not properly monitoring his attendance. As the applicant’s enrolment was cancelled primarily for the non-payment of fees, the Tribunal does not accept that the College failed in its relevant duties. The Tribunal accepts that the applicant has a medical condition however he has provided no evidence that the condition prevents him from attending to his studies or of preventing him from any other kind of activity. The applicant also told the Tribunal that whilst he does not and has not worked other than occasionally since being in Australia, his parents have continued to fund his studies and his living expenses since he arrived. If this is the case, its difficult to understand why the applicant could not pay his outstanding fees.

21. The applicant is currently enrolled in another course which was due to begin on 12 November but which he has also delayed until 3 December. The applicant claims that he has not attended that course as he is uncertain about his visa status. The Tribunal is concerned that the applicant is continuing his past behaviour of enrolling in courses with no intention to attend or complete any of them. When this was put to him the applicant claimed he had sa strong commitment to continue his studies.

22. The applicant told the Tribunal at the hearing that he had not been enrolled in a course since his enrolment in a course at Spencer College was cancelled in July 2017 and his enrolment in another course in April 2018. The Tribunal notes that the applicant maintains that he was not aware that his enrolment had been cancelled. For the reasons articulated above, the Tribunal does not accept that claim.

23. On the evidence before the Tribunal, the applicant was not enrolled in a relevant course for a continuous period of nine months.  Accordingly, the applicant has not complied with condition 8202(2) hence the Tribunal is satisfied that the grounds for cancellation exist.

    Consideration of the discretion to cancel the visa

24. 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’

25. The Tribunal has considered the purpose of the visa holder’s travel and stay in Australia including whether the visa holder has a compelling need to travel to or remain in Australia.

26. The applicant claims that he is dedicated to completing his studies in Australia however he has enrolled in a number of courses which have been cancelled by the provider for non-payment of fees. At the hearing he confirmed with the Tribunal that his actual attendance at these courses had also been sporadic. He claims that sometimes the college didn’t require him to attend. Asked if he completed any of the necessary requirements towards completion of the course the applicant admitted that he had not.

27. The applicant has claimed that he was unaware that his enrolment had been cancelled as he had not received the notification. The Tribunal does not accept that the applicant did not receive that notification as he has provided the Tribunal with a log of communications between himself and the college which shows extensive communications about fee payments and other matters. It seems unlikely then, that the applicant would not have received the two communications in relation to his eventual enrolment cancellation.

28. The Tribunal does not accept that the applicant did not receive the communication as claimed and was aware at all material times that his enrolment had been cancelled. In any case, it is difficult to comprehend how the applicant would have formed and continued to hold a belief that he would still be enrolled in a course for which he had neither paid the relevant fees nor attended the necessary classes or completed the necessary assignments.

29. The applicant claimed that he had sought to shorten his time in study by seeking RPL of courses he had already completed. He claimed that he considered that this meant he was still enrolled. After a long discussion it transpires that the applicant did not pay the necessary fee to engage the RPL process. Asked why he thought that not paying a required fee would still result in an outcome the applicant told the Tribunal that he did not know he had to pay a fee. The Tribunal put to him that at the front of the application form (at Folio 114 of the Tribunal’s file) it states that there is a $200 application fee to conduct the RLP assessment which would then be deducted from the full RPL fee of $5,000 for the Diploma in Hospitality. The applicant claims he was not told he had to pay a fee. The Tribunal does not accept this. The evidence, provided by the applicant, clearly shows the process the applicant was required to undertake to apply for and receive an RPL assessment. He did not undertake those steps necessary and it is therefore difficult to accept that he could have formed a plausible belief that he was in the process of undergoing an RPL assessment by Spencer College and that this somehow, in his mind, indicated that he was still enrolled.

30. He has not completed a course since the end of December 2016. His multiple subsequent enrolments in other courses has been, in the Tribunal’s mind, simply a way to remain in the country by any means possible, not for the purposes of study as he claims or as is required by the conditions of his visa.

31. The applicant was married in November 2018. He claims that if he is required to depart Australia that he will be separated from his wife, who is also a temporary resident studying in Australia. The applicant claims that his wife suffers from anxiety and psychological issues which would be exacerbated should he be required to depart. The applicant has provided 6 medical certificates from May 2016 to October 2018 indicating that the applicant’s wife has anxiety and panic attacks. She has been prescribed medication for this condition. There is no medical suggestion or evidence that the applicant’s presence is required to assist his wife or that his departure would exacerbate her condition. The Tribunal also notes that the applicant’s wife would not be prevented from returning to Korea at the conclusion of her studies to reunite with the applicant.

32. The Tribunal is not satisfied that the applicant has any compelling reason to travel or remain in Australia.

33. The Tribunal has considered the extent of compliance with visa conditions and found that the applicant has been non-compliant with condition 8202.

34. The Tribunal has considered the degree of hardship that may be caused (financial, psychological, emotional or other hardship) if the applicant is required to depart Australia. In forming a view of this matter the Tribunal has considered the medical evidence provided by the applicant and discussed in paragraph 28 above. The applicant also told the Tribunal that his parents are both ill and will not be able to continue to finance his education. He claims that they are counting on him to complete his studies so that he can get a good job and be in a position to support the. As the applicant has shown no indication that he has any genuine intention to attend to or complete any course of study despite being in Australia for that purpose for some 4 years, the Tribunal does not give this claim any weight in the applicant’s favour.

35. The Tribunal has considered the circumstances in which ground of cancellation arose. The applicant claims that he did not know that his enrolment had been cancelled as he had only been sent one notice which he did not receive. The applicant claims that during the relevant period he had been seeking other ways of improving his English language skills so that he could enrol in a bachelor’s degree and was engaged in an RPL process with Spencer College.

36. The Tribunal does not accept that the applicant was unaware of his enrolment being cancelled or that he was unaware that his cancellation would result in his visa being cancelled. He claims that the college had an obligation to monitor and inform him of his attendance and progress and that they failed in this regard. The Tribunal does not accept this. The college appears to have informed the applicant on numerous occasions that the non-payment of his fees would result in his enrolment being cancelled over the years. It seems to the tribunal if the applicant felt that the college had failed in regard to their obligations towards him that he would have made some kind of formal or even informal appeal to the college to have his cancellation reinstated. There is no evidence before the Tribunal that he engaged in any such process or informed the college that he believed the cancellation of his enrolment to be unwarranted, mistaken or unfair.

37. The Tribunal has also considered the applicant’s arguments that his involvement in a RPL process with Spencer College confirmed in his own mind that he was still enrolled. However, the applicant did not engage in this process as there is no evidence that he lodged an application form and he claims that he did not pay the relevant fee.

38. The Tribunal is also of the view that the applicant himself had and has an obligation to inform himself that the cancellation of his enrolment would result in the cancellation of his visa, all other things being equal. Even so, the Tribunal does not accept that the applicant was not aware of the consequences of his failure to pay for or attend the relevant course.

39. Furthermore, the applicant has been the subject of enrolment cancellations on many occasions for non-payment of fees. It is difficult to see how the applicant could have formed and held a belief that he was still enrolled in a course that he had not paid for and which he did not attend. Given that he claims that his parents have funded his studies and did not tell the Tribunal that they suspended their financial support in any way, there does not appear to be a valid reason why the applicant did not or could not pay his fees.

40. The Tribunal is not satisfied that there were any circumstances beyond the applicant’s control which created the grounds for the cancellation of his visa.

41. The Tribunal has considered the applicant’s past and present behaviour of the visa holder towards the department and finds no evidence to suggest that the applicant evaded the department in any way or was otherwise uncooperative.

1. The Tribunal has considered whether there would be consequential cancellations under s.140 and found that there are none.

2. The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

3. If the applicant does not depart Australia whilst his bridging visa is still valid he may well be liable for detention and removal from Australia. The applicant’s decisions in regard to maintaining a lawful status in any event is a matter for him and would not be the consequence of the Tribunal’s decision not to cancel his visa.

4. If the applicant’s visa is cancelled he may be prevented from applying for a further visa whilst in Australia and may also be adversely affected if he applies for a subsequent visa to return. The Tribunal does not consider these matters to be other than what is required by the Act and not specific to the applicant and gives them only some weight in the applicant’s favour.

5. The Tribunal does not consider that there are any international obligations, including non-refoulement and best interests of the children as a primary consideration, which would be breached as a result of the cancellation. The applicant has no children and he has not provided any evidence to the Tribunal that his removal would be in breach of any international obligations.

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

   DECISION

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

   Ann Duffield
   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.