Pau (Migration)

[2019] AATA 2889

Pau (Migration) [2019] AATA 2889 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Kiew Kang Pau

CASE NUMBER:  1815733

HOME AFFAIRS REFERENCE(S):     BCC2018/908715

MEMBERS:Dr Jason Harkess

DATE:21 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 21 June 2019 at 10:44am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – failure to attend scheduled hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – non-payment of fees – financial difficulties – responsibility to comply with visa conditions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of Malaysia. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 21 May 2018 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 10 July 2017 with an original expiry date of 17 May 2019 providing for approximately 22 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia.

4. The delegate cancelled the Applicant’s visa on the basis that the Applicant had breached that 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.

5. By letter dated 30 May 2019, the Tribunal invited the Applicant to attend a hearing on 21 June 2019 at 10:00 AM in relation to his application for review. The letter was sent by email to the address that was nominated by the Applicant, for the purposes of communications with the Tribunal in relation to his application, when he lodged his application. The Applicant did not respond to the hearing invitation and did not appear at the time and place at which the Applicant was scheduled to appear. In the circumstances, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.[1]

   [1] Section 362B(1A)(a) of the Migration Act 1958 (Cth) permits the Tribunal to proceed to make a decision in such circumstances.

6. For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 17 August 2017 to 21 May 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to approximately 9 months during which the Applicant was in continuous breach of the visa.

2. The delegate’s finding in this respect 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 (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[2] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia.

   [2] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

4. The PRISMS report obtained by the delegate indicated that the Applicant’s course provider, had cancelled his enrolment due to the non-payment of fees on 17 August 2017. The PRISMS report indicated that he had not been enrolled in any registered course since that date.

5. The Department of Home Affairs wrote to the Applicant by letter dated 24 April 2018, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). The NOICC set out particulars of the alleged breach by the Applicant of condition 8202. It specified 17 August 2017 as the date on which the Applicant’s enrolment had apparently ceased. The Department’s letter also drew attention to the fact that the PRISM’s database appeared to show that he had not been enrolled in any registered course of study since that time. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

6. The Applicant responded to the to the NOICC on 30 April 2018. He explained in his response that he could not pay his tuition fees, and so he appeared to implicitly concede that he was in breach of his student visa.

7. Accordingly, it seems reasonably clear that the delegate was correct in reaching the conclusion that the Applicant had been in breach of his visa for the period of time identified.

Consideration of the Discretion to Cancel the Visa

1. 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. 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 (PAM3) ‘General visa cancellation powers’.

2. In the Applicant’s NOICC response, the Applicant stated that he had not paid for his tuition fees because his wife had recently given birth to their first child. His wife had to stop work and so their income was limited. He stated that he was only permitted to work twenty hours per week and he needed to use those funds to support his family. That, he suggested, was his priority and not his tuition fees. He stated that, as he is not an Australian citizen, he is not entitled to apply for a student loan. The Applicant also mentioned that he was then in the process of applying for a Subclass 820 (Partner) visa as he had recently married the mother of his new born son, who is apparently an Australian citizen.

3. The Tribunal is of the view that the Applicant’s explanation for his failure to pay his fees on time is unsatisfactory. It is an essential ongoing requirement for all student visa holders to maintain a sufficient level of finance to meet their tuition, living and other costs for the duration of their stay in Australia.[3] Personal circumstances of student visa holders in Australia are ever-evolving. It is not uncommon for a student visa holder to enter a relationship and have a child during the operational period of their visa. Such a life-changing event does not constitute a satisfactory excuse to de-prioritise the obligation to comply with one of the most essential conditions of their visa. The visa holder must adapt, like so many other new parents do, while continuing to abide by the law. That means they must continue to remain enrolled and study. If they are unable to continue to meet that ongoing obligation, they should take steps to contact the Department or their course provider to discuss the possibility of having their studies deferred while, at the same time, maintaining a current enrolment so as to avoid a situation whereby they remain in continuous breach of their visa.

   [3] See Migration Regulations 1994 (Cth), Sch 2, cl 500.214.

4. In his response to the NOICC, the Applicant stated he contacted his course provider and explained his situation and requested that his studies be deferred. Beyond that written assertion made by the Applicant, there is no evidence before the Tribunal that verifies that is what he in fact did. In any event, it appears that the course provider made a decision to cancel the Applicant’s enrolment in accordance with its own administrative procedures due the Applicant failing to pay his tuition fees. There is no material before the Tribunal suggesting that might suggest that decision was not made in good faith.

5. In the end, the Applicant’s explanation of the situation effectively amounts to a statement that he was unable to adapt to the financial struggles that naturally flow from being a parent while, at the same time, maintaining his legal obligation to comply with an essential condition of his student visa. He chose to breach the visa. The Tribunal is not satisfied that he took adequate steps to contact either his course provider or the Department so that he might properly avoid a situation where he remained in continuous breach of his visa.

6. For the purposes of the Tribunal’s determination, the Tribunal has refrained from speculating as to the outcome of his Subclass 820 partner visa application. There is no material before the Tribunal concerning its progress.

7. The Tribunal accepts that the cancellation of his visa may cause the Applicant some hardship with respect to his situation in Australia, given that he is a relatively new parent. However, this must be tempered against the important responsibility of complying with the essential obligation of maintaining a current enrolment while on a student visa. The Applicant was evidently aware of the breach of his visa obligation but nevertheless chose to let the breach continue without taking positive remedial action.

8. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations that would occur by the operation of s 140 of the Act if the Applicant’s visa is cancelled.

9. The Tribunal notes that if the visa is cancelled, the Applicant may become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also 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 Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of visa conditions.

10. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements for him to depart Australia. He is a citizen of Malaysia and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

11. Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

12. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member