LAM (Migration)

[2018] AATA 5432

LAM (Migration) [2018] AATA 5432 (22 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MING TIM LAM

CASE NUMBER:  1702601

HOME AFFAIRS REFERENCE(S):           BCC2017/304664

MEMBER:Stephen Conwell

DATE:22 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 November 2018 at 9:21am

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 – death of a close relative – did not contact the Department – did not seek professional help – employment history in breach of visa condition – degree of hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 February 2017 made by a delegate of the Minister for Immigration and Border Protection 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 complied with paragraph 8202(2) (enrolment). 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. The applicant appeared before the Tribunal on 14 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

8. On 15 December 2014 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

9. According to the delegate’s decision, the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 18 March 2016.

10. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 18 March 2016. In his written submission to the Department and at hearing the applicant did not dispute has not been enrolled in a registered course of study since 18 March 2016.  The Tribunal therefore finds that he breached condition 8202(2)(a) of his visa.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Did the applicant comply with Condition 8202?

12. 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).

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

    Consideration of the discretion to cancel the visa

14. 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 are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

15. On 1 February 2017 the Department of Immigration and Border Protection (now the ‘Department of Home Affairs’) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa.

16. In his response to the NOICC, received on 8 February 2017, the applicant said:

    ·      He initially did attend classes in the early part of 2015 but “became lost … I overestimated myself before I started [to] seldom attend classes … therefore I forgot the VISA’s requirements that I must attend 80% of classes …”

    ·      He is regretful of his mistake/negligence that he had not complied with his visa condition; he admitted his wrongdoing to his parents.

    ·      He did not have the proper support and guidance and did not know the importance of complying with his visa conditions.

    ·      After his enrolment at Monash College was cancelled, he made three attempts to enrol at another institution, without success.

    ·      He hopes to be given an opportunity to remedy his past mistakes.

17. Regarding the circumstances in which the grounds for cancellation arose, the applicant said in oral evidence that:

    ·      He finished high school in his home country of Hong Kong, then spent a year working. He then applied for, and was granted, a visa to study in Australia.

    ·      In Australia he struggled to cope with his studies and did not perform well at college.

    ·      His brother in mainland China and passed away in 2015 from accidental gas poisoning at home; this news “struck him hard since he was his older brother. In fact it was his cousin (being his aunt’s son) however as his parents had had five daughters and no son at that point, his aunt ‘adopted out’ her son to the applicant’s parents, to be raised as their son.

    ·      The applicant returned to his home country for several weeks in mid-2015 for the funeral. On his return he struggled with his studies and class attendance. He chose not to discuss his circumstances with his college as he believed that it was not affecting his studies.

    ·      On his return to Australia following his brother’s death, he worked for several months in 2015 as a casual waiter in a Chinese restaurant (Café Soho in Glen Waverley, Melbourne). He generally worked six days a week, averaging 30 hours per week (60 hours per fortnight). He was paid in cash.

    ·      He claims that he was not aware that his visa had a condition which limited his work rights to 40 hours per fortnight during school term.

    ·      After leaving Monash College he tried enrolling at the Royal Melbourne Institute of Technology (RMIT) on three occasions without success.

    ·      He is aware that his current Bridging visa has conditions which prohibit study or work, however since his visa was cancelled he has been working a few days a week as a removalist for a co-tenant in the share house in which he lives. This co-tenant owns/manages a furniture removalist business.

    ·      Whilst he is aware that he is breaching the ‘work rights’ condition attaching to his Bridging visa, he needs the money to meet his living costs since his brother’s death has restricted his parents’ financial ability to continue to support him.

18. The Tribunal noted at hearing that the applicant had not mentioned his brother’s death in any previous communication or statement to the Department or to the Tribunal. The applicant could not satisfactorily explain why he had not done so.  The Tribunal afforded the applicant a further seven days from the hearing date to submit evidence of his brother’s death. No further evidence of his brother’s death was provided by the applicant.

19. Nevertheless the Tribunal is willing to accept that the applicant’s brother did die during the applicant’s time in Australia.  The Tribunal also acknowledges that the death of a close relative can, and usually does, cause a person to experience grief and sadness. However, as did the delegate, the Tribunal notes there is no evidence the applicant contacted the Department to explain his circumstances and seek advice as to possible options regarding his studies, including deferment and perhaps returning to his home country until he was better able to cope with the rigours of overseas study. There is also no evidence to suggest the applicant sought professional help either at his college or from external sources to manage his grief and sadness.

20. The Tribunal therefore is not satisfied his brother’s death prevented the applicant from pursuing his studies in Australia, or remaining enrolled in a registered course of study.

21. Regarding the purpose of the applicant’s travel to and stay in Australia, the Tribunal accepts the applicant’s initial intention in travelling to and residing in Australia, was for the purpose of study.

22. Regarding the extent of the compliance with the conditions to which the applicant’s visa was granted, at the time of the Department decision (being 15 December 2014) the applicant had  not been enrolled in a registered course of study since 18 March 2016. The Tribunal believes this breach to be significant. The Tribunal also notes the purpose of the Student visa is to allow non-citizens to study in Australia and this is an obligation which an applicant is made aware of at the time of grant.

23. The Tribunal also notes that the applicant’s employment history in Australia has been in breach of the ‘work restriction’ condition attaching to his Student visa and the Bridging visa that he currently holds. The Tribunal notes that a visa holder is made aware of the condition(s) attaching to the visa at the time of grant and agrees to abide by these conditions.

24. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, the applicant said that he comes from a traditional Chinese family and he is now the only son in the family. His parents ‘paid a lot of money for him to study in Australia’; he would feel like he ‘let his parents down’. He claims to have told his parents that he is having ‘visa problems, without elaborating, since if his parents found out about his present circumstances they would be “a devastated and disappointed”.

25. If his visa remained cancelled, it would not be ‘a complete disaster’ however he would feel guilty about the financial cost to his parents for funding his overseas studies for no successful outcome.

26. He is now 22 years of age and is re-considering his parents’ suggestion that he pursue a “career in accounting or business”. His personal preference is music; should his visa be granted he would enquire about pursuing studies in music and composition in Australia.

27. After considering all the findings made herein, the Tribunal was not satisfied that the applicant’s circumstance and explanation for his non-enrolment for a significant period of time warrant that it should exercise its discretion in this case.

28. The Tribunal accepts the applicant (or his family) may suffer some financial hardship if his visa is cancelled. As an unlawful non-citizen, he would then be liable to be detained under s.189 and removed under s.198 of the Act. However based on the evidence before it, the Tribunal is not satisfied the applicant would be subject to indefinite detention. Further, he would be able to apply for a Bridging visa in Australia which would allow him to remain in the community whilst finalising his affairs.

29. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act and he would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013 (meaning he could not be granted a temporary visa for three years from the date of cancellation). 

30. Next, there is no evidence before the Tribunal that –

    ·      The applicant has been un-cooperative with either the Department or the Tribunal.

    ·      There will be any consequential cancellations if the applicant’s visa is cancelled.

    ·      Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

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.

    Stephen Conwell
    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.