Ratsaeng (Migration)

[2019] AATA 4174

Ratsaeng (Migration) [2019] AATA 4174 (2 September 2019)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thanakritsadee Ratsaeng

CASE NUMBER:  1835078

HOME AFFAIRS REFERENCE(S):           BCC2018/4065718

MEMBER:Mark Bishop

DATE:2 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 02 September 2019 at 1:22pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – maintain enrolment in the higher education sector – consideration of discretion – no compelling need to remain in Australia – significant period of breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 November 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was no longer enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas. 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 2 September 2019 to give evidence and present arguments. Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant provided a copy of the decision record to the Tribunal.

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 was attached to the applicant’s visa. This condition requires a visa holder continue to satisfy the primary or secondary criteria for the grant of a visa.

9. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

10. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

11. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 12/037.

12. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037.

13. The delegate made the following findings:

    ·According to PRISMS the visa holder was no longer enrolled in  a bachelor’s degree or master’s degree course;

    ·According to PRISMS the visa holder was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister made under the relevant instrument;

    ·The visa holder no longer satisfied either subclauses 573.231 or 573.223(1A) and had not complied with condition 8516;

14. The delegate stated the applicant was notified of the intention to consider cancellation (NOICC) on 30 October 2018 and the notice invited the applicant to respond in writing. The applicant did not respond.

15. The applicant did not provide a written submission to the Tribunal

16. The Tribunal asked the applicant to comment on the delegate’s decision record at the hearing and in particular to comment on his enrolment and circumstances related to his enrolment. The applicant advised the Tribunal  he had been enrolled in a Cooking course in the VET sector; he missed some classes and was not enrolled in a Bachelor degree in the period 8 July 2016 until 23 November 2018. He advised his Migration Agent advised him to enrol in a Commercial Cookery Course. He followed that advice. He advised he was not aware he had to maintain enrolment in the HE sector. He did not check with the Department or examine their website.

17. Based on the information above, the Tribunal finds that the applicant, while holding a subclass 573 student visa, did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that he breached condition 8516 attached to his student visa.

18. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

19. 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’.

    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

20. The applicant lived in Australia from 2002 until 2012. He then returned to Thailand for approximately three years. He returned to Australia in 2015 to study in the HE sector. The applicant did not work or study in Melbourne apart from a period of time whilst engaged with a course in Commercial Cookery. He lived with his sister in Melbourne from December 2018 until May 2019. She kicked him out of the house on account of the fact he owed her money. The applicant advised he was now living in Perth and had been there for 3 months.  He is not working in Perth. His parents remit funds to him in Australia. He lives with his aunty in Perth. He is not currently studying or working in Perth. His girlfriend in Melbourne does not visit him in Perth.

21. The applicant is 32 years of age. The applicant is divorced. If he returned to Thailand he may not be able to return to Australia and hence not see his sister in Australia. The applicant advised his mother runs his business in Thailand and her management of the business is satisfactory. His mother and his employees manage his business well. He does not have any complaints. The applicant advised he had been involved in a motorcycle accident in July 2018. He was not really hurt at all. He does not have any residual medical problems or issues. He has no mental problems.

22. The Tribunal asked the applicant to address the issue of compelling need. The applicant advised his parents had invested a lot of money in his education in Australia and it would be unfortunate if he had to return home prior to completing his studies. The Tribunal is aware the applicant has spent nearly all his adult life in Australia. He has been exposed to the education system to university level. He is aware of the demands made of students in this country. He advised he was not aware conditions attached to his visa required him to maintain enrolment in the HE sector. The Tribunal asked the applicant on several occasions to outline his compelling need to travel to or remain in Australia. He advised of family but also advised his sister kicked him out of Melbourne. He advised of a girlfriend in Melbourne but did not see her and she did not visit him in Perth. He advised he did not wish to marry her at this time. He advised his mother sent him a large amount of money to live in Perth. He advised he owned a successful business in Thailand and it was run well in his absence by his mother and the employees. He did not advise of any compelling need to need to travel to or remain in Australia

    The extent of compliance with visa conditions

23. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

24. The applicant first came to Australia in 2002 at the age of fifteen. He remained in Australia for ten years until 2012. H did army service in Thailand in 2013. He returned to Australia in 2015 to study a Bachelor in Business (Marketing). He stopped this study in July 2016. He studied Commercial Cookery in Melbourne. He did not finish these courses.

25. The applicant did not work or study in Melbourne. He lived with his sister in Melbourne from December 2018 until May 2019.The applicant advised he was now living in Perth and had been there for 3 months. He is not working in Perth. His parents remit funds to him in Australia. He lives with his aunty in Perth. He is not currently studying or working in Perth.

26. The applicant is 32 years of age. The applicant is divorced. If he returned to Thailand he may not be able to return to Australia and hence not see his sister in Australia. He cannot currently see his sister in Melbourne as she kicked him out of the house because of debt. The applicant advised his mother runs his business in Thailand and her management of the business is satisfactory. His mother and his employees manage his business well. He does not have any complaints. The applicant advised he had been involved in a motorcycle accident in July 2018. He was not really hurt at all. He does not have any residual medical problems or issues. He has no mental problems.

27. The applicant advised he would not suffer any financial or psychological hardship if he returned to Thailand. His family has invested a lot of money in Australia. That investment might be wasted. He advised his father expects him to remain in Australia. If her returns to Thailand his father would be disappointed. His sister is a single mother. He tries to make his family happy. It is not difficult to return to Thailand.

28. The Tribunal is unable to determine that the applicant will suffer any degree of hardship that may be caused (financial, psychological, emotional or other hardship) by a return to Thailand.

    Circumstances in which ground of cancellation arose

29. The Tribunal has considered the grounds upon which the cancellation arose. They are outlined in detail in the delegate’s decision and summarised above. The Tribunal has reviewed the information provided on the Departmental and Tribunal files. The Tribunal notes the applicant has not completed courses in the HE sector. The Tribunal notes the applicant enrolled (but did not complete) courses in the VET sector in breach of conditions attached to his then visa. There is no evidence before the Tribunal he has been maintained enrolment or continued to study in the HE sector. The Tribunal notes the applicant has not provided an explanation as to why he did not adhere to conditions of enrolment in the HE sector as required by her student visa at the relevant times. The applicant advised he acted following advice from his education agent. He advised the Tribunal he did not check this advice with the Department or look at the Departmental website as to his right to enrol in non-HE courses.

    Past and present behaviour of the visa holder towards the department

30. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach

    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

31. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart Australia.  It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

32. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

33. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

34. The Tribunal is not unsympathetic to the applicant’s wish to remain in Australia. He has spent nearly all his adult life in this country. To a significant degree is he acculturated to Australian standards and customs. Those standards and customs generally involve adherence to the law, compliance with conditions of entry, enrolment in approved courses of study and academic progress. There is no evidence the applicant has attempted to observe those standards. There is no evidence before the Tribunal to indicate the applicant has sought assistance and guidance to deal with the different academic streams and processes in Australia or any compelling indication of what the applicant wishes to do or achieve with a qualification earnt in Australia.

35. The Tribunal has given careful consideration to this aspect and has also considered the opportunities that may have been available to the applicant to mitigate these concerns of departing from Australia and not see his sister in Melbourne or aunties in Perth. That departure from Australia is a direct consequence of decision made by the applicant not to adhere to Australian standards and conditions after having lived in this country from the time he was a boy. As a visa holder bound by the conditions of the visa, there is no supporting documentation to indicate he sought to advise the Department of his changing circumstances, or in fact, seek to change his visa class, in an endeavour to remain compliant with the conditions of his visa.

36. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-573 visa  and that a breach in excess of 12 months is significant in the context of a student’s study period

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

    DECISION

38. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mark Bishop
    Member