Lim (Migration)

[2019] AATA 1785

Lim (Migration) [2019] AATA 1785 (18 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tejun Lim

CASE NUMBER:  1730158

HOME AFFAIRS REFERENCE(S):           BCC2017/3016441

MEMBER:Michelle East

DATE:18 March 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 18 March 2019 at 2:51pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant was not enrolled in a higher education course– education provider closing down – circumstances beyond the applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 189, 198
Migration Regulations 1994, cls 500.111, 500.211, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the delegate found the applicant had breached condition 8516 which was attached to the applicant’s Student (Temporary)(class TU) Student (subclass 500) visa and found that the factors against cancellation did not outweigh those in favour of cancellation and cancelled 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.

3. The applicant appeared before the Tribunal on 15 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of a telephone interpreter in the Korean and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. The condition specifies that the holder must continue to be a person who would satisfy the criteria for the grant of the visa. 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?

7. The applicant provided a copy of the delegate’s decision with the application for review. It indicates the applicant was granted a subclass 500 visa to study in a higher education course on 21 September 2016. Condition 8516 requires that the applicant must be a person who would satisfy amongst, other criteria, subclause 500.211(a) of Schedule 2 of the Migration Regulations 1994.  Subclause 500.211(a) requires the applicant to be enrolled in a ‘course of study’.  Subclause 500.111(d) defines course of study as meaning a ‘full time registered course’.  Higher Education Course is further defined as a ‘course of study leading to the award of any of the following: (d) a bachelor degree’’.  The decision record stated that the delegate was satisfied the applicant met the requirements of subclause 500.211 and granted him the Subclass 500 visa with condition 8156 attached.

8. The delegate’s decision record refers to PRISMS which shows that the applicant was no longer enrolled in his Bachelor of Ministry degree and was enrolled in an IELTS Preparation course from July – December 2017.

9. On the basis of the information before it, including the applicant’s own oral evidence given at the hearing as outlined below in this decision, the Tribunal is satisfied that the applicant was not enrolled in a higher education course and therefore did not satisfy cl.500.211(a) and he was not a person who would satisfy the primary criteria for the grant of the visa.  There is no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa.  The Tribunal therefore finds that he breached condition 8516 of his student visa.

10. 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 the visa should be cancelled.

    Consideration of discretion

11. 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’.

12. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

13. The purpose of a student visa is to enable the visa holder to undertake study in Australia.  The purpose of the Higher Education Sector visa is to enable the visa holder to undertake study at the higher education level.  The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 6 October 2017.  The applicant responded to the NOICC on 10 October 2017. 

14. The applicant had intended to study a Bachelor of Ministry with Vose Seminary.  He was advised by Vose that he was unable to be enrolled until he had an IELTS score of 6.5.  He was advised to re-enrol in an English course for one more semester.  A letter from Vose provided by the applicant dated 10 October 2016 indicates the applicant was enrolled on 22 July 2016 in ‘English Readiness for Life and Christian Ministry’.  Vose then cancelled this course due to insufficient numbers as indicated in its letter dated 10 October 2016.  The applicant then studied General English for 5 weeks from 14 November 2016 with Milner International College of English.  Two Confirmations of Enrolment were provided by the applicant for ‘IELTS Preparation’ from 23 January 2017 to 11 June 2017 and 17 July 2017 to 31 December 2017 with the World College Group.

15. The evidence before the Tribunal, including the applicant’s own oral evidence is that he enrolled in the IELTS English preparation course with World College and was undertaking the study during the first part of 2017.  Without warning the World College closed its doors in July/August 2017 and the applicant was unable to make alternative arrangements to complete those studies.

16. The applicant acknowledged he had not been enrolled in higher education studies as required by the conditions of his visa.

17. The Tribunal finds the applicant’s breach of condition 8516 to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

18. The Tribunal questioned the applicant whether there were any compelling reasons for him to remain in Australia and he said he felt he had Christian work to do in Australia which had opened him to Christianity.  The applicant confirmed he did not have any family members to care for in Australia.

19. Whilst the Tribunal accepts the applicant’s evidence regarding his personal need to stay in Australia, the Tribunal doesn’t accept those reasons as compelling.  The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

20. The Tribunal has considered the extent of compliance with visa conditions.  The applicant has breached condition 8516.  There is no evidence however that he has breached any other visa conditions and therefore the Tribunal considers this factor to be neutral in deciding whether to cancel his visa.

21. In his response to the NOICC and in his submissions to the Tribunal the applicant outlined the degree of hardship that would be caused by his cancellation.  He said that ‘Nevertheless, I would like to emphasize that my motivation for coming to Australia and my reason for choosing theology and deeply learning English in Australia is truly pure.  From my point of view, my student visa has potential to contribute to the diplomatic exchange between Korea and Australia based on the Christian spirit I have studied and learned in Australia seminary.  If the visa is not cancelled, I would appreciate a precious opportunity to graduate from Vose Seminary and after returning to Korea, I would like to pass on my life experience, faith and English that learned in Australia to the wandering young people who have lost their dreams about the future in Korea.  Furthermore, I have a desire to help English speaking multicultural families in Korea and become a friend in Christ.’

22. In discussing the hardship to his family who have supported him materially and emotionally he said, ‘Nonetheless, if the visa is revoked, the mental and physical suffering of my family would be harder than me.  I also think the image of Australia that my family trusts would remain a pain’.

23. The Tribunal accepts that there would be a significant degree of hardship caused to the applicant and his family and finds this weighs in favour of the applicant.

24. The Tribunal has considered the circumstances in which the ground of cancellation arose.

25. The applicant provided evidence of courses completed being a Certificate IV and Diploma in Ministry.  The applicant’s PRISMS record reflects the applicant as being enrolled in a Bachelor of Ministry for 2 years commencing February 2017.  The applicant in his response to the NOICC indicates he decided to do the Bachelor course mid 2016 but didn’t meet the English requirements for the course.  He said the intention was to do the English course at Vose prior to commencing his undergraduate course.  The evidence provided satisfied the Tribunal that Vose were unable to offer the course due to insufficient students.  As noted above he studied English at Milner International College of English and with World College Group.  Whilst studying at World College Group it closed without warning their students.

26. In his submission at paragraph 6, his representative stated ‘Applicant was looking for the other education provider to continue his study, however Notice of Intention of Cancellation was sent to him on 6 October 2017’.

27. The Tribunal is of the view that as a holder of the student visa the applicant had the responsibility to familiarise himself with the conditions of his visa and what these required of him.  The visa applicant would have been advised of visa conditions at the time of the visa grant.  The Tribunal is not satisfied the applicant took adequate steps to ensure he was complying with his visa conditions and requirements.

28. The applicant by his own admission has said that he took too long to study English and did so because he wanted to be proficient in the language rather than just studying to achieve an IELTS score.

29. The Tribunal questioned the applicant whether he had contacted the Department to discuss his situation.  He responded that he was so busy with his service at the Mission and as a Christian he had to devote a lot of time to the people and was too devoted to his service to talk to the Department.

30. The Tribunal is sympathetic to the applicant’s situation and notes he could not have foreseen the issue with Vose being unable to offer the English course.  Furthermore, he was let down by the World College Group closing when he was studying there.  However, by his own admission he took longer than expected to learn adequate English.  The Tribunal finds that the breach did occur in circumstances that were somewhat beyond the applicant’s control and gives this weight in the applicant’s favour.

31. The Tribunal has considered the past and present conduct of the visa holder towards the department.  Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal finds this gives some weight in the applicant’s favour.

32. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

33. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.

34. The Tribunal is mindful that the delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, the applicant will have limited options to apply for further visas in Australia. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour.

35. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8516 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking study at the level for which his visa was granted.  The Tribunal has found that there are extenuating or compassionate circumstances in this case and that the breach occurred in circumstances to some degree beyond the applicant’s control. The cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

36. In considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

37. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Michelle East
    Member