Maulana (Migration)

[2018] AATA 388

Maulana (Migration) [2018] AATA 388 (14 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aldi Maulana

CASE NUMBER:  1617157

DIBP REFERENCE(S):  BCC2016/3282758

MEMBER:Antoinette Younes

DATE:14 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 February 2018 at 1:41pm

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 – Emotional hardship – Applicant did not attend hearing – Limited evidence of hardship – Degree of hardship does not outweigh grounds for cancellation

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 October 2016 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 has not complied with condition 8202. 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 was represented in relation to the review by his registered migration agent.

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

   HEARING INVITATION

5. On 11 January 2018, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled at 11.00am on 12 February 2018. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration.

6. On 25 January 2018, the applicant advised the Tribunal that he would be attending the hearing, however on the morning of the hearing, the applicant advised that he did not wish to attend the hearing.  He requested a decision on the papers.

7. In those circumstances, the Tribunal has decided to make its decision on the review without taking any further action.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. 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).

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

11. In the delegate’s decision record a copy of which the applicant provided to the Tribunal, it is noted that information available in the Provider Registration and International Student Management System (PRISMS) indicates that as of the date of the delegate’s decision record of 12 October 2016, the applicant had not been enrolled in a registered course of study since 4 September 2015. The applicant has accepted this information and he provided explanations.

12. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course of study and consequently he has not complied with condition 8202(2). As the applicant has not complied with the visa condition, the ground for cancellation in s.116(1)(b) arises.

    Consideration of the discretion to cancel the visa

13. 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.  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).

    The purpose of the applicant’s travel to and stay in Australia - whether the applicant has a compelling need to travel to or remain in Australia

14. The applicant has claimed that the purpose of his travels and stay in Australia was to study and he was granted the visa for that purpose.

15. On 4 October 2016, the Department sent to the applicant a notice of intention to consider cancellation to which the applicant responded on 6 October 2016.  In his response, the applicant accepted that he had not complied with a visa condition and he provided the following explanations:

    a.He was enrolled at ACPE (the Australian College of Physical Education) and during the second semester there was a family problem. His father had wanted him to attend law school and the plan was that the applicant would enrol at UTS to undertake foundation studies and a law degree.  As he was forced to take this subject, his grades at the foundation course dropped significantly and he did not obtain the required score to enable him to continue to study law at UTS.

    b.He spoke to his agent who advised him to enrol at a different university. At ACPE, his grades were good in the first semester until he had a big disagreement with his father. Also his aunt who lives in Australia kept distracting him from his studies and she was interfering. His father was sending the applicant’s school fees to the aunt and he does not know what she did with the money but he was late in paying tuition fees. He moved out away from his aunt to live by himself but he was always distracted from his study when it came to paying tuition fees. He suspects that his aunt had been “manipulating” the money that his father had been sending. That was the main reason for the breach of the visa condition.

16. In submissions provided to the Tribunal, the applicant’s representative noted that:

    a.The applicant came to Australia in 2005 at the age of 14 for the purpose of undertaking primary, secondary and tertiary education. The applicant’s father wanted the applicant to obtain superior education and the father believed that the quality of education in Australia far exceeds that available in Indonesia. The Indonesian culture expects children to obey their parents and the applicant’s father held high aspirations for the applicant. The applicant was a diligent and model student at all times. He worked extremely hard to support himself financially whilst studying and he took his studies seriously. Allowing the applicant to remain in Australia to complete his current course of study at Kaplan will give the applicant the opportunity to obtain superior qualifications which would enhance his employment prospects in Indonesia.

    b.The applicant’s change from his original course, foundation studies and bachelor of laws at UTS was due to the fact that he was compelled by his father to choose a career in law. The applicant felt obligated to adhere to his father’s wishes but the applicant struggled academically and he was unable to continue the course at UTS so he changed to the course of bachelor of sports coaching which is a CRICOS approved course. This demonstrates the applicant’s diligence in seeking alternative education opportunities commensurate with his skills’ set and career aspirations.

17. The Tribunal accepts that the applicant travelled to Australia to study. The applicant has advised the Tribunal that he did not wish to attend the hearing. On the basis of the available information and without having had the opportunity to discuss with the applicant in the course of the hearing his full circumstances, including his studies at Kaplan, the Tribunal is not satisfied that the applicant is staying in Australia for study purposes or that he has a compelling need to remain in Australia.

    The extent of compliance with visa conditions - whether the applicant has otherwise complied with visa conditions now and on previous occasions

18. In submissions to the Tribunal, the representative noted that since his arrival in Australia in 2005, the applicant has always complied with the conditions of his visa. It was noted that in 10 years, the applicant has made five trips to Indonesia which demonstrates that the applicant has strong ties with his home country and has maintained a strong relationship with his family, consistent with his intention to return to Indonesia to seek employment.  The representative noted that the applicant has been a model visa holder.

19. The delegate’s decision record provided to the Tribunal notes that the applicant’s last enrolment was a bachelor of sports coaching and administration degree at ACPE which was cancelled on 4 September 2015 due to unsatisfactory course progress. The Tribunal accepts that the applicant has generally complied with visa conditions, the applicant’s visa was cancelled on the basis of non-compliance with condition 8202 which the Tribunal considers to be significant and means that the visa should be cancelled.

    The degree of hardship that may be caused to the applicant and any family members - whether the applicant is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

20. In submissions responding to the notice of intention to consider cancellation, the applicant noted that during high school and when he was under his aunt’s care, she abused him and his older brother; she treated them like slaves. She made them do household chores and they ate leftovers from her family’s dinner. She called him names in Indonesian and she claimed that the house that their father bought was hers. He has been living in Australia for almost his entire life. He would like to ask for another chance to continue his studies in Australia. He considers himself to be a citizen of Australia.

21. The applicant provided to the Tribunal a copy of his resume, attendance records at Kaplan Business School and submissions dated 5 February 2018.

22. In submissions to the Tribunal, the applicant’s representative reiterated the applicant’s claims that the applicant had experienced “substantial emotional and psychological abuse, family issues, financial difficulties and distractions from his time as a student in Australia”. The applicant has been abused by his aunt who had misappropriated tuition funds transferred to her from the applicant’s father. Those circumstances were beyond the applicant’s control and he failed to meet the course requirements at ACPE. As he got older, the applicant has been in a position to take more control of the situation including moving out of the aunt’s home, renting an apartment and obtaining part-time employment. However, those steps placed significant financial pressure on the applicant. The applicant has since enrolled in a bachelor of accounting at Kaplan, demonstrating his commitment to his education. The applicant has lived in Australia for almost half of his life and his brother also resides in Australia. It was always the applicant’s intention to complete his education in Australia and if his visa were cancelled, he would suffer significant hardship in being forced to return to Indonesia without appropriate qualifications. This would severely impact his future employment and financial position. He would be compelled to face the ire of his family for not completing his education. The applicant and his brother are close and he would be forced to leave his brother in Australia. The applicant is now in a position to complete his tertiary education at Kaplan and his attendance is exemplary (reference made to the attached documents). The abuse by the aunt is an extenuating circumstance which has had a direct adverse impact on the applicant’s ability to complete his studies.

23. The applicant has made serious claims about his aunt including abuse and misuse of funds.  These are significant claims that the Tribunal would have asked the applicant about in the course of the hearing.  Without having had the opportunity to discuss and further explore with the applicant in the course of the hearing his claims of abuse at the hands of his aunt, family and/or issues, the Tribunal is not satisfied on the evidence before it that any of those claims mean that the visa should not be cancelled.

24. The Tribunal acknowledges that the applicant came to Australia to study.  The Tribunal accepts as plausible that if the visa were to be cancelled, there could be a degree of disappointment to the applicant and his brother would be in Australia without him. The Tribunal has not had the opportunity to discuss and further explore with the applicant in the course of the hearing the circumstances of his brother in order to fully explore any relevant issues. On the evidence before it, the Tribunal is not satisfied that any of those claims mean that the visa should not be cancelled.

25. The Tribunal is mindful that the applicant could become unlawful and may be subject to detention but these are consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

26. Looking at the circumstances cumulatively, the Tribunal is not satisfied that there is a degree of hardship that means that the visa should not be cancelled.

    The Circumstances in which ground of cancellation arose - whether there were any extenuating circumstances beyond the applicant’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, whether the relationship has broken down as a result of family violence.

27. As outlined above, the applicant has not enrolled in a course for a substantial period, contrary to a condition attached to his visa. In submissions to the Tribunal, it was argued that the non-compliance was beyond the applicant’s control, namely due to the psychological, emotional and physical abuse suffered by the applicant at the hands of his aunt in Australia who also misappropriated funds.

28. The Tribunal has carefully considered the applicant’s circumstances and on the evidence, the Tribunal is satisfied that his circumstances as accepted by the Tribunal and for the reasons explained do not mean that the visa should not be cancelled.

    The applicant’s past and present behaviour towards the department - whether the applicant has been truthful and cooperative in their dealings with the department.

29. The applicant responded to the notice of intention to consider cancellation and the Tribunal has given this aspect some weight in favour of the applicant but this does not mean that the visa should not be cancelled.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140

30. There is no evidence before the Tribunal and the applicant is not claiming that there would be any consequential cancellations under s.140.

    Whether there are mandatory legal consequences to a cancellation decision

31. As discussed earlier, the applicant could become unlawful and may be subject to detention but these are consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

32. On the evidence before it, the Tribunal is not satisfied that any international obligations would be breached as a result of the cancellation. 

    Any other relevant matters raised by the applicant

33. In submissions to the Tribunal, the representative indicated that the applicant has a strong work ethic and he has worked in numerous hospitality and retail roles since 2006, at the age of 15. It was noted that the applicant’s commitment to the Australian workforce and economy from such a young age demonstrates his desire to better himself, both through education and work experience. His experience has provided him with the opportunity to gain fluent English and it is now his first language. His English language skills would enhance his employment prospects in Indonesia on his return. The applicant has proven himself to be hard-working, loyal and committed employee.  The Tribunal accepts the submissions that the applicant has a strong work ethic and the Tribunal acknowledges his contribution in this regard.  However, the applicant was granted a student visa to enable him to undertake studies in Australia. The primary objective of the visa is to enable the holder to study.  The applicant has breached a condition attached to his student visa which the Tribunal considers to be significant.

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

    DECISION

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

    Antoinette Younes

    
    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.