PARK (Migration)

[2019] AATA 6858

PARK (Migration) [2019] AATA 6858 (12 September 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr KIBEOM PARK

CASE NUMBER:  1723475

DIBP REFERENCE(S):  BCC2017/2710785

MEMBER:  Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         12 September 2019 at 11:35 am (VIC time)

DATE OF WRITTEN RECORD:                23 October 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 23 October 2019 at 4:45pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector – enrolment in a registered course ceased – failure to pay tuition fees – financial hardship – unpaid loan to friends – several courses completed – decision under review affirmed 

LEGISLATION

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 September 2017 to cancel the applicant’s Subclass 572 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 September 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant is a citizen of South Korea who seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 September 2017 cancelling his subclass 572 student visa. The applicant’s student visa was granted on 26 June 2015 with an original expiry date of 27 June 2018. That student visa provided for three years during which the applicant would be permitted to reside in Australia for the purposes of full-time study. The delegate cancelled the applicant’s visa on the basis that he had breached the condition of the visa which required him to continue to be enrolled in a registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the tribunal via video link to give evidence and present arguments on 12 September 2019. The tribunal hearing was convened in Melbourne. The applicant appeared via video link at the tribunal’s premises in Sydney. The applicant was assisted by his registered migration agent, Mr Jaigon Jang, at the hearing, also via video link in Sydney. The tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages who also attended the tribunal’s premises in Melbourne.

5. The applicant’s visa was subject to a number of conditions as described by schedule 8 of the Migration Regulations, as they then were, when the visa was granted.

6. In the present case, the issue is whether the applicant has breached condition 8202 of the regulations. If the applicant has breached that condition, the visa may then be cancelled pursuant to section 116(1)(b) of the Act. Condition 8202(2)(a) of the applicant’s visa required that he remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 1 January 2017 to 26 September 2017 as the relevant period in which the applicant was alleged not to be enrolled in a registered course of study. This amounted to more than 8 months during which the applicant was alleged to be in continuous breach of his visa.

7. The delegate’s finding was based on a report which the delegate had obtained from the Department of Education and Training’s provider registration and international student management system, known as PRISMS. The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000. It provides a means for education providers in Australia to comply with legislative requirements relating to international students who are studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status, and to notify the Department of Education and Training, as well as the Department of Immigration and Border Protection, of any issues arising from a student’s general compliance with the visa conditions once the visa has been issued.

8. The PRISMS report obtained by the delegate in this case indicated that the applicant had not been enrolled in a registered course of study since 1 January 2017. The applicant’s then course provider, ILSC Pty Limited, had cancelled enrolment on that date due to the applicant’s failure to pay his tuition fees that fell due. The PRISMS report indicated that the

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applicant had not enrolled in any other course following the cancellation of his enrolment in the ILSC Pty Limited course.

1. The Department of Immigration and Border Protection wrote to the applicant on 31 August 2017 notifying him of its intention to consider cancelling his student visa. That notice set out particulars of the alleged breach by the applicant of condition 8202. The applicant was invited to comment on these allegations before the Department moved to cancel his visa. The applicant did not respond to the notice, and so the delegate moved to cancel his visa on 26 September 2017.

2. At the hearing before the tribunal on 12 September 2019 the applicant admitted in oral evidence that he was in breach of the visa for the period alleged by the delegate.

3. Based on that evidence and the other information and material before the tribunal, the tribunal is satisfied that the delegate was correct in reaching the conclusion that the applicant was in breach of condition 8202 for the period alleged.

4. Having found that the applicant has not complied with the condition of the visa, the tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or the regulations that must be considered in the exercise of this discretion. However, the tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the applicant in the course of the hearing and any relevant matters identified in the Department’s procedures advice manual.

5. Firstly, I turn to consider the circumstances giving rise to the breach of condition 8202. Prior to the convening of the hearing on 12 September 2019 the applicant, through his registered migration agent and solicitor, Jaigon Jang, filed written submissions dated 9 September 2019. Those submissions were based on the instructions of the applicant. It was put to the tribunal that the applicant was not enrolled in the period, in breach of condition 8202, because he was in financial difficulty after having been swindled out of approximately $15,000 by a friend and his wife, who he had met earlier while on working holiday in Australia. It was stated that the $15,000 included money he had borrowed from his mother as a loan by a credit card.

6. As a result of this money being taken, essentially it was suggested that he was out of pocket with reference to his own ability to pay for his tuition fees when they fell due. He stated that his mother and his mother’s lawyer attempted to recover the money, but that was largely in vain, for the money ultimately was not able to be recuperated. In support of this claim, documents were filed. Firstly there is a letter dated 25 September 2017 from Kim & Associates, being lawyers. That letter on its face appears to represent a formal demand being made by the applicant’s mother through her lawyers, Kim & Associates, to the person who had borrowed 11 million Korean won, which amounted approximately then to twelve-and-a-half thousand Australian dollars. Kim & Associates’ letter refers to instructions that they had received from the applicant’s mother. Kim & Associates, their letter refers to facts which they were told by the applicant’s mother, and those factual allegations are largely consistent with what the applicant has stated.

7. There is also included in the documentation provided a translated promissory note. The original promissory note was in Korean, which has also been provided, and the promissory note has been typed up in English. The promissory note is consistent with the applicant’s evidence about this sum of money that has been lent by his mother to this third party, or former friend of the applicant. It indicates that money was lent on 1 March 2016 in the sum of 5 million Korean won, and then the $5 million Korean won lent on 2 May 2016, then on 5 May 2016, the amount of $1 million Korean won. Those dates and payments are listed in a promissory note, which was - that promissory note is dated 30 December 2016. What may

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be inferred from that promissory note, that as of that date, being 30 December 2016, the friend, whose name is Ms Zhang, had not yet paid any of that 11 million Korean won back. The promissory note was effectively a written promise given by Ms Zhang to repay that money back in instalments starting from 15 January 2017. As time went by, in 2017 payments were obviously not made in accordance with that promissory note, and what followed was the letter from Kim & Associates on 25 September 2017 demanding repayment.

1. Throughout the commencement of this hearing, this case was advanced on the basis by the applicant that his sole explanation for failing to remain enrolled for a period of 8 months was because he did not have the money to pay for his tuition fees, all because of this unpaid loan. The tribunal pointed out to the applicant that the payment of the 11 million won, or the $12 or $13 thousand Australian dollars equivalent, was all paid in the first half of 2016. For that following six months prior to the point in time when his fees fell due from his course provider that ultimately were not paid, he had that time potentially to gather more funds so that he could pay his fees when they fell due. Upon enquiry from the tribunal, the applicant admitted in oral evidence that he had contemplated the possibility during that six month period that they might not pay it back. The applicant also conceded in evidence that the reason for the cancellation of his enrolment by the then-course provider was for his failure to pay only $1550.

2. Given that the tribunal is of the view that the applicant had plenty of time to arrange for payment of a relatively small sum during that six month period, the tribunal is not of the view that this $15,000 loan or 11 million won loan, which has apparently gone awry, is in no way a satisfactory explanation for his failure to pay his fees at the beginning of 2017. The tribunal indicated that particular viewpoint in the course of the hearing, at which point the applicant proceeded to explain another reason why his enrolment continued to cease. He referred to the fact that his mother was ill. Specifically, she was having psychiatric or mental health issues for which she was receiving treatment. She was suffering depression, and that was affecting him. The applicant said that he was having to send her money for that treatment, and that also affected his finances in terms of his ability to pay for his fees.

3. The tribunal also does not accept that as a satisfactory explanation for his continuous breach of the visa, and there are two essential reasons for rejecting that as a satisfactory explanation. Firstly, he never raised that as an issue until now. On the basis of the submissions received by the applicant’s lawyers dated 9 September 2019, this entire case today was to be advanced on the basis that he had been swindled out of $15,000. He admitted as much at the very outset of his hearing, that the essential basis upon his argument for setting aside the cancellation decision was that he had been swindled out of $15,000. To raise this new issue in the course of the hearing, it simply has no credibility. For the avoidance of doubt, I accept that the applicant’s mother may have been suffering psychiatric issues. I also accept that he may have been contributing by way of monetary assistance to her welfare. What I do not accept is this being a satisfactory reason for him ceasing his studies.

4. This brings me to the second reason why I reject that second explanation as satisfactory. Students are under a continuing obligation to maintain a sufficient level of finances to be able to meet their daily living expenses, and in particular, their tuition fees. It is a priority, that is, payment of fees and having enough money to pay for fees, that the applicant needed to adhere to. He chose not to, and he has given no satisfactory explanation.

5. I have given consideration to the purpose of the applicant’s stay in Australia. The purpose of his 572 visa and the reason that the Australian government gave him permission to stay in Australia was for him to study on a full-time basis. The applicant chose not to study for a period of almost nine months. By their nature, student visas are inherently temporary.

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Student visa holders are to enter and stay in Australia, complete their studies, and depart. I have taken into account the fact that in the first 18 months of his 572 visa from June 2015 to the end of 2016, the applicant completed a Certificate II in Customer Contact, and also a Certificate III in Business. I have also taken into account that since the applicant’s visa was cancelled, he has been on a bridging visa and he has been using the time in Australia to continue to study. He has produced evidence demonstrating he has completed a Certificate IV in Marketing and Communication. He completed that in November 2018. He is also currently enrolled in a Diploma of Marketing and Communication. He produced a letter dated 4 September 2019 from the course provider, showing that he started that in January 2019, and it will be complete at the beginning of January 2020.

1. I am satisfied on that basis that since his visa was cancelled, he has been demonstrating the behaviour that a genuine student would demonstrate. However, I am ultimately of the view that there is no compelling reason why he needs to remain in Australia. I have taken into account the extent of the applicant’s compliance with his visa conditions. The continuing breach of almost 9 months represents a significant portion of that visa. The tribunal regards that as a serious breach of his visa for which no satisfactory explanation has been given. The applicant, the tribunal notes, has otherwise been compliant with his visa conditions.

2. The tribunal has given consideration to the applicant’s expressed desire to remain in Australia and complete his education. The tribunal accepts that it would be difficult for him if he were not allowed to complete successfully his diploma before moving onto his proposed bachelor’s course. He says that following completion, if he is permitted to stay in Australia, of the Diploma of Marketing, he would enrol in a Bachelor of Marketing and Media at Macquarie University. He said he would like to be given this chance so that he can finish that bachelor’s course and then return to Korea with those qualifications so that he does not let his parents down. If his visa remains cancelled and he is forced to return to Korea, he stated that he will find a similar course and enrol there.

3. The tribunal has given consideration to the applicant’s past and present behaviour towards the Department. There is no adverse information before the tribunal in that regard. The tribunal notes that there do not appear to be any consequential cancellations under section 140 of the Act that will follow if the applicant’s visa is cancelled. The tribunal notes that if his visa is cancelled, the applicant will become an unlawful non-citizen and liable to detention and removal if he does not voluntarily depart Australia. The tribunal has also taken into consideration that there would be a bar under section 48 of the Act which will limit his options to apply for further visas, including temporary student visas, from within Australia. He will be subject to a three year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criteria 4013 to be met. He will be subject to a three year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that Public Interest Criteria 4013 to be met. However, these are all the intended consequences of a breach if one occurs, such as the present.

4. The tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case. In all of the circumstances, the tribunal is of the view that the preferable outcome in this case is that the applicant’s visa should be cancelled. The time now is 11.35 am. In case number 1723475 in the matter of Kibeom Park, the tribunal affirms the decision to cancel the applicant’s student temporary class TU subclass 572 visa.

   DECISION

   The Tribunal affirms the decision under review.

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Dr Jason Harkess Member

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