POON (Migration)

[2018] AATA 2635

POON (Migration) [2018] AATA 2635 (15 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHUN WANG POON

CASE NUMBER:  1713642

DIBP REFERENCE(S):  BCC2017/1328595

MEMBER:Tigiilagi Eteuati

DATE AND TIME OF

ORAL DECISION AND REASONS:          15 June 2018 at 12:02 pm (QLD time)

DATE OF WRITTEN RECORD:                5 July 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 05 July 2018 at 12:17pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) visa – Registered course enrolment – Second Subclass 573 visa – Failure to complete study – No interest in business studies – Lack of ability or desire to complete a higher education course –Hardship – Parent’s disappointment and shame – 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 8 June 2017 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 15 June 2018 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. This is an application for a review of a decision dated 8 June 2017 made by a delegate of the Minister for Immigration to cancel the applicant's subclass 573 visa. The delegate cancelled the applicant's visa under section 116(1)(b) on the basis that the applicant had breached a condition of his visa. That condition was condition 8202, which provided that the applicant was to remain enrolled in a registered course.

4. The issue in the present case is whether that ground for review is made out and, if so, whether the applicant's visa should be cancelled.  The applicant appeared before the Tribunal on 15 June 2018 to give evidence and present arguments.  The applicant's representative appeared by telephone and the hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

   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 of the Migration Regulations. If the applicant breached that condition, under section 116 of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

6. Condition 8202 as it applies in this case requires a student to remain enrolled in a registered course.

7. The delegate found that the applicant had not been enrolled in a registered course since 22 August 2016.  The applicant admitted that he had not been enrolled in a registered course between 22 August 2016 and July 2017 when he was enrolled in a Diploma of Applied Fashion Design and Merchandising.  The Tribunal accepts that the applicant was not enrolled in a registered course between these dates.

8. Accordingly, the applicant has not complied with condition 8202 and his visa may be cancelled under section 116 of the Migration Act.

   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 to exercise its discretion to cancel the visa. 

10. 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 and his representative as to why the visa should not be cancelled.  The Tribunal has also considered government policy guidelines contained in the department's Procedures Advice Manual.  The Tribunal has also considered all material provided by the applicant and his representatives.

11. At the hearing before the Tribunal the applicant indicated that he had begun high school studies in Australia in 2010.  He was issued a subclass 573 visa in January 2013.  At the time that he applied for that visa he was enrolled in a Certificate IV in University Preparation and a Bachelor of Creative Arts. The applicant began the Certificate IV in February 2013 but he said that he was unable to complete that course successfully.  His enrolment in the Bachelor of Creative Arts was abandoned and the applicant enrolled in a Certificate IV in Business.

12. The applicant completed the requirements of that course in March 2014 and the applicant then began a course of Diploma of Management in March 2014.  The applicant indicated that he failed that course and began a Diploma of Marketing in November 2014.  He was again unsuccessful in completing that course.

13. The applicant then applied for a second subclass 573 visa, which was granted in November 2015.  When he applied for the grant of the second 573 visa he was enrolled in a Bachelor of Business course.  That course began in November 2015 but the applicant gave evidence that by February 2016 he had ceased attending classes.  The applicant failed to pay any further course fees or enrol in the next semester of study.  His enrolment in the Bachelor of Business course was subsequently cancelled on 22 August 2016.

14. The applicant was sent a Notice of Intention to Consider Cancelling his visa in May 2017.  He failed to reply to that notice in the required time and his visa was subsequently cancelled on 8 June 2017.

15. The applicant explained, and has provided statements, that the reason that he stopped studying his bachelor course was because he had no interest in studying business.  Both his statement, and his parents' statements dated 13 June 2018, indicate that the applicant was pressured into studying business subjects by his parents.  The applicant has claimed that he ceased his studies in the bachelor course in protest of his parents' pressure for him to study business. The applicant has claimed that from 2016 he was depressed and this was caused by the pressure put on him by his parents to study business and also by problems with his parents' marriage, which were in part caused by the applicant's refusal to continue to study business and his desire to study fashion design. The applicant's parents have now indicated that they accept the applicant's chosen course of study and will continue to support him if he is allowed to remain in Australia to study.

16. The Tribunal received a letter from a Dr Jimmy Wang dated 12 June 2017.  That indicated that the applicant had reported suffering from a low mood, which was caused by problems in his parents' marriage.  The Tribunal notes that there is no mention in that letter of the applicant's refusal to study business or his desire to study fashion design, which the applicant had claimed was one of the causes of the problems in his parents' marriage.

17. The applicant is currently studying for a Diploma of Applied Fashion Design and Merchandising, which is due to be completed in July 2018.  It is noted that the applicant is not currently enrolled in a higher education course and that, as a result, he continues to breach and would be breaching, condition 8516 of his visa should his visa be reinstated.

18. The Tribunal raised with the applicant its concern that, as he had only been able to complete a Certificate IV in Business since his first 573 visa was granted in 2013, because he had failed to even complete the Certificate IV in University Preparation and that he had either failed or withdrawn from all other courses that he had been enrolled in,  the applicant may not have the ability to successfully undertake a higher education course in Australia.

19. The applicant told the Tribunal that the reason that he had either failed all of his previous courses apart from the Certificate IV or had discontinued his study in those courses was that he had no interest in studying business subjects and this made it very difficult for him to successfully complete his courses.

20. The applicant said that if he were permitted to remain in Australia that he planned to complete the Diploma of Fashion Design, apply for a third 573 visa, and enrol in a Bachelor of Fashion Design degree.

21. The Tribunal raised its concern with the applicant that, because he had ceased study in February 2016 and did not enrol in any course from that time until July 2017, after his visa was cancelled, and because the applicant had failed to enrol in a bachelor's degree since his enrolment in the previous bachelor degree was cancelled in August 2017, the applicant may not have the will or desire to successfully undertake a higher education course in Australia.

22. The applicant responded that the reason that he ceased his studies in the Bachelor of Business course was that he had no interest in business courses and was protesting against his parents' pressure for him to study business. He said that he felt he was unable to enrol in another course in 2016 until July 2017 because he felt helpless and depressed because of his inability to pass subjects in the past, the pressure put on him by his parents, and the troubles in his parents' marital relationship.

23. The Tribunal asked the applicant whether he would suffer any hardship if his visa remained cancelled.  The applicant indicated that if his visa was cancelled and he would return to Hong Kong that he would be homeless as his parents would refuse to accommodate him. The applicant also indicated that it would be difficult for him to study fashion design in Hong Kong as those courses have competitive entry requirements.  He also said that he considered Australian fashion design qualifications superior to those available in Hong Kong and that he would have a better chance of gaining suitable employment with Australian qualifications rather than qualifications from Hong Kong.

24. The applicant's representative addressed that the Tribunal and made some comments.  He indicated it was quite common for parents from Asia to put pressure on their children in Australia to study subjects that they did not wish to study.  He also described this as a generational issue.  He said that his assessment was that the applicant did indeed want to study and indicated that he was a genuine student.

25. Finally, the applicant indicated that, if he were allowed to remain in Australia, he did not want to disappoint his family and would complete his fashion design courses and that he may therefore be able to find employment and to make his parents proud of his achievements.

26. The Tribunal finds that the applicant does not have the ability to successfully undertake a higher education course in Australia.  This is evidenced by his failure to complete any courses over the period of the last two 573 visas that he has held with the exception of a Certificate IV course that he completed in March 2014.

27. The Tribunal accepts the applicant's evidence that it was difficult for him to pass these courses as he had no real interest in them.  However, the Tribunal considers that his failure to complete any courses apart from the Certificate IV strongly indicate that the applicant does not have the ability to successfully undertake a higher education course in Australia. In addition, the applicant could have enrolled in courses which he had a greater interest in but failed to do so until July 2017.

28. The Tribunal also finds that the applicant does not have the will or desire to successfully undertake a higher education course in Australia.  This is evidenced by the fact that the applicant ceased studying his last bachelor's course in February 2016, that he did not enrol in any course between that time and the cancellation of his visa in June 2017 and his failure to enrol in a bachelor's course to this day.

29. The Tribunal accepts that the applicant may have had some difficulty with his mental health in 2016 and 2017 resulting from the pressure from his parents but the Tribunal does not consider that the pressure adequately explains his failure to seek enrolment in another course until after his visa had been cancelled.

30. The Tribunal is willing to accept that the applicant and his parents may experience some disappointment and shame that the applicant's visa was cancelled before he was able to complete a higher education course.  The Tribunal also considered that as the applicant's visa has been cancelled he may have to wait some time before being granted another visa to Australia.

31. The Tribunal does not accept that the applicant's parents will provide him with no accommodation if he returns to Hong Kong.  The applicant's parents have always provided the applicant with financial assistance even though on the applicant's evidence there were constant arguments between the applicant and his parents regarding his studies.

32. The applicant's parents' letter also indicates that his parents care deeply for him and love him and have been supportive of him throughout his time in Australia.

33. The Tribunal accepts that the applicant considers that Australian qualifications may be better regarded than Hong Kong qualifications.  The Tribunal has also considered the applicant's assertions that it may be more difficult to gain entry into fashion design programs in Hong Kong and his view that he would have better employment opportunities if he were able to complete qualifications in Australia.

34. The Tribunal has also considered that the applicant has lived in Australia since 2009 or 2010 and would be likely to have strong connections and an affinity with Australia and its people.  The Tribunal has also considered that the applicant's current course is due to conclude in mid-July 2018 and that the cancellation of his visa may mean that he is unable to complete that course although that is not certain.

35. However, the Tribunal finds that the applicant's lack of ability and desire to successfully undertake higher education courses in Australia heavily outweighs any hardship that the applicant or his family members may face because of the cancellation of the applicant's visa.

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

    DECISION

37. The Tribunal affirms the decision to cancel the applicant's subclass 573 visa.

    Tigiilagi Eteuati
    Member