Ng (Migration)

[2019] AATA 5997

Ng (Migration) [2019] AATA 5997 (2 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ting Chi Ng

CASE NUMBER:  1826787

HOME AFFAIRS REFERENCE(S):          BCC2018/1060301

MEMBER:P. O'Farrell

DATE:2 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 October 2019 at 3:03pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered higher education course ceased – family illness – limited academic progress – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, 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 was in breach of condition 8202 as the applicant was not enrolled and that the reasons not to cancel the visa did not outweigh the reasons to cancel.  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 12 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

4. 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

5. 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?

6. 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).

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

8. The applicant stated that he was not enrolled at the date of cancellation of the visa.  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).

   Consideration of the discretion to cancel the visa

9. 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’

Background

1. The applicant is a Chinese national born on 29 July 1993.

2. The Department sent a NOICC to the applicant on 1 June 2018.

3. The applicant provided a response to the NOICC.  In the response, it is stated that the applicant had experienced differences between his studies and his earlier studies and that this was a cause of anxiety and that he was overwhelmed at the time.  He stated that he has applied to a different University and requested additional time to obtain a certificate of enrolment.

4. In submissions provided to the Tribunal, the applicant states that he came to Melbourne in 2015 on a working holiday visa as he had a lot of friends studying there and also because he wanted to visit the famous natural views.  He decided to study in Australia and enrolled in a foundation year at Monash College. 

5. He stated that he met his girlfriend during this first year but failed his course which caused him to be anxious.  He sat a supplementary examination and sought to extend a Certificate of Enrolment for a Bachelor of Commerce.  At the hearing, he stated that he did not pass the supplementary examination.  At the hearing, he stated that he was not sure whether Monash extended his Certificate of Enrolment.

6. At the hearing, he stated that he experienced difficulties with some of his class mates and this was why he didn’t attend classes.  He stated that his girlfriend encouraged him to return to school.

7. He returned to his home country at the end of 2017 and stated that he had a great time with his family but when it came time to return to Australia, one of his family members was sick and he had to stay with them until the situation got better.  He stated that as a result he missed the date for enrolment but did not think that was a big issue.  He was issued with a fail by his college.  He states it was then that he realised that his enrolment situation was of significance.

8. At the hearing, he stated that he was not enrolled when he returned to his home country at the end of 2019.

9. He stated that he has future plans to go to the ‘500 top businesses in his home country as a junior employee’.  He also stated that his parents have ‘ideas of letting me take control of their own business so they can have a long holiday and enjoy their old ages.’  At the hearing, he stated that his future plan is to find a job, maybe in the sales industry.

10. He states that he is sorry that he did not know the student visa conditions.

11. He expressed his affection for his girlfriend who is studying in Australia and stated that he would like the opportunity to finish his studies and stay together with her.

Consideration of discretion

• the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

1. The applicant initially came to Australia on a working holiday visa.  The applicant states that he came to Melbourne in 2015 on a working holiday visa as he had a lot of friends studying there and also because he wanted to visit the famous natural views.  He decided to study in Australia and enrolled in a foundation year at Monash College.

2. In his response to the NOICC, in submissions to the Tribunal and at the hearing he stated that he wanted to continue his studies. 

3. The Tribunal finds that the failure of the applicant to maintain enrolment is not consistent with the purpose of the applicant’s travel and stay in Australia for the purpose of study and although the applicant may wish to continue studying, he has not demonstrated a powerful or convincing reason for needing to stay.

• the extent of compliance with visa conditions

1. The applicant was granted a TU500 visa for the purpose of study.  The study visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted and remain compliant with student visa obligations, the visa holder must maintain enrolment.

2. The applicant has not complied with the condition attached to his visa as he has not been enrolled in a full-time registered course of study since 25 August 2017.

3. The applicant’s evidence that he did not know about the enrolment condition of his visa is of concern to the Tribunal and a matter which weights in favour of cancellation.  It is a matter for a visa holder to be aware of conditions which apply to the visa holder’s visa.

4. I consider that the breach of condition 8202(2) here is significant, having been for a long period. I therefore give the lengthy breach of condition 8202 some weight towards the visa being cancelled.

5. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from 8202.  The Tribunal gives some weight towards the visa not being cancelled in this respect.

• degree of hardship that may be caused (financial, psychological, emotional or other hardship)

1. The applicant indicated that if his visa is cancelled, he would be separated from his girlfriend.  He gave evidence that he intends to marry his girlfriend on 16 August 2019.

2. He stated that if he was required to return to Hong Kong, there might not be enough room there in his family home because there are already a number of family members living there.

3. I accept that there would be some hardship to the applicant and his family and his relationship with his girlfriend if the visa remained cancelled, and I accept that there may be some difficulties for the applicant with his family and his girlfriend. However, I do not accept, on what he has said and the information before me, that such hardship is significant and I give this only little weight towards the visa not being cancelled.

• circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

1. The grounds for cancellation arose because the applicant failed to maintain enrolment in a full-time registered course of study.

2. The applicant stated that he had experienced differences between his studies and his earlier studies and that this was a cause of anxiety and that he was overwhelmed at the time.  He stated that he met his girlfriend during this first year but failed his course which caused him to be anxious.  The applicant did not provide any medical reports or the like in relation to his claimed anxiety. 

3. At the hearing, he stated that he experienced difficulties with some of his class mates and this was why he didn’t attend classes.  He stated that his girlfriend encouraged him to return to school.

4. The Tribunal is not sufficiently satisfied by the applicant’s evidence and the information before me that these explain the reasons for the breach in this case.  The evidence of the applicant that he was not aware of the enrolment condition of his visa which weighs in favour of cancellation.  In this respect, it is a matter for a visa holder to be aware of relevant visa conditions.

• past and present behaviour of the visa holder towards the department

1. The delegate report states that the applicant has been cooperative in his dealings with the Department.  I give this some weight in favour of the visa not being cancelled.

• whether there would be consequential cancellations under s.140

1. There would be not consequential cancellations under section 140 as a result of cancellation.

• 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

1. The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia, and it may be difficult to be granted further visas, and he may be subject to a three-year exclusion period unless relevant Public Interest Criterion is met.

2. It is unlikely however that the visa applicant will be detained but rather provided with a time-limited period in which he can leave the country or apply for review of the decision.

• whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

1. The circumstances of this matter are not such that would engage Australia’s international obligations.

• if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. Not relevant.

• any other relevant matters.

1. The applicant was asked during the hearing whether there were any other relevant matters that he wanted to bring to the attention of the Tribunal.  I have carefully considered the evidence of the applicant but I find he has not provided any other relevant matters that go to the visa not being cancelled.

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

   DECISION

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

   P. O'Farrell
   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.