SANGKASANYA (Migration)

[2020] AATA 5547

SANGKASANYA (Migration) [2020] AATA 5547 (16 July 2020)

CORRIGENDUM

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Chaiyan SANGKASANYA

Mr Vanvisa SANGKASANYA

CASE NUMBER:  1817500

DIBP REFERENCE(S):  BCC2018/854190

MEMBER:  L. Symons

DATE OF DECISION:  16 July 2020

DATE CORRIGENDUM

SIGNED:  29 October 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The following correction is made to the decision:

1. Front page of decision record. Remove s.431 disclaimer at the bottom of the page.

L.Symons Member

Statement made on 29 October 2020 at 2:15pm

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chaiyan SANGKASANYA
Ms Vanvisa SANGKASANYA

CASE NUMBER:  1817500

HOME AFFAIRS REFERENCE:               BCC2018/854190

MEMBER:L. Symons

DATE:16 July 2020

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 16 July 2020 at 1:25pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – enrolment in a Higher Education Sector course – consideration of discretion – enrolment cancelled due to non-commencement of studies – circumstances giving rise to non-compliance – undertook English language course to meet course entry requirements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 348

Migration Regulations 1994 (Cth), Schedule 2, cls 573.223; 573.231; Schedule 8, Condition 8516

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 8 June 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The first named applicant, Chaiyan Sangkasanya, is a 39-year-old male from Thailand. He was granted a subclass 573 Student visa on 14 June 2016 and arrived in Australia on 27 June 2016. He departed Australia on 25 November 2016 and returned on 8 December 2016.

3. The second named applicant, Vanvisa Sangkasanya, is the 40-year-old wife of Mr Chaiyan Sangkasanya. She arrived in Australia on 27 June 2016 as a dependent on her husband’s subclass 573 Student visa and departed on 25 November 2016. She arrived in Australia for the second time on 8 December 2016 and departed on 12 July 2017. She last arrived in Australia on 20 July 2017.

4. The delegate cancelled the first named applicant’s visa on 8 June 2018 under s.116(1)(b) of the Act on the basis that he did not comply with condition 8516 attached to his TU-573 visa. The second named applicant’s visa was cancelled consequentially under s.140 of the Act. They applied to the Tribunal for a review of that decision on 14 June 2018.

5. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation and not by a decision. It was by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1) of the Act, the Tribunal has no jurisdiction with respect to the second named applicant.

6. The first named applicant appeared before the Tribunal on 14 January 2020 to give evidence and present arguments. The second named applicant gave evidence as a witness in his case. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

7. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the first named applicant’s Student visa should be cancelled.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the first named applicant’s visa should be affirmed.

   consideration of Claims and evidence And findings

9. 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(b) of the Act. 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?

10. 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 his or her visa. In this instance, condition 8516 attached to the first named applicant’s Student visa. This condition requires that the first named 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. Relevantly, subclasses 573.231 or 573.223(1A) require enrolment in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A.

11. In the present case, the first named applicant was granted a subclass 573 Student visa on 14 June 2016. This visa was subject to a number of conditions including condition 8516. On 8 May 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled.

12. The applicants’ migration agent provided written submissions dated 31 May 2018 to the Department of Immigration (the Department) in response to the NOITCC including reasons why the first named applicant’s visa should not be cancelled. She also provided copies of his visa grant notice for his Student visa, a Confirmation of Enrolment (COE) from Charles Sturt University in relation to a Master of Business Administration (MBA) commencing 24 July 2017, a Certificate of Completion dated 30 June 2017 from Embassy English, a Medical Certificate dated 17 July 2017 in relation to the first named applicant’s mother-in-law, two COEs from Magill College, an enrolment confirmation letter from Magill College dated 10 May 2018 and an Interim Transcript from Magill College dated 10 May 2018. The Department cancelled the first named applicant’s Student visa on 8 June 2018.

13. The first named applicant filed with the Tribunal copies of the Department’s Decision Record dated 8 June 2018, an email dated 31 July 2017 from a travel agent in relation to booking the first named applicant on a flight to Bangkok, email correspondence with Charles Sturt University, a Student Invoice dated 30 March 2016 from Embassy English, a Conditional Letter of Offer from Charles Sturt University dated 30 March 2016, an email from the Hyatt Hotel to the second named applicant, visa grant notices to Sunee Promsuwun, Worapop Sangkasanya and Vanvisa Sangkasanya, copies of some of the documents previously provided to the Department, the biodata pages of the first and second named applicants’ Thai passports, Academic Transcripts for the first and second named applicants, a document titled ‘Overall Progress’ from Embassy English, two Certificates of Completion issued by Embassy English to the first named applicant in relation to a General English course and an IELTS preparation course, three Certificates of Employment dated 14 March 2014, 15 July 2014 and 19 May 2016 issued to the second named applicant, a Certificate of Employment dated 5 April 2016 issued to the first named applicant and a copy of the submissions dated 30 May 2018 made by the applicants’ migration agent to the Department.

14. The first named applicant provided to the Tribunal an unsigned statement dated 8 January 2020 that appears to be from him.

15. During the hearing, the Tribunal asked the first named applicant whether he agreed with the Department’s statement that his enrolment in the MBA at Charles Sturt University was cancelled on 24 July 2017 and since then he has not been enrolled in a Master’s degree or a Bachelor’s degree as his principal course of study. He responded that he consulted an (education) agent who advised him to study another 6 months and amend the time for studying his Master’s degree to 1 ½ years.

16. The first named applicant stated that he told his (education) agent that it would be difficult for him to condense his Master’s degree to 1 ½ years as he did not have sufficient English language skills. He stated that he asked his (education) agent if it was possible to study a lower level course that did not require such a high level of English but his (education) agent refused and did not help him. He stated that he consulted a different education agent and did not enrol in a Bachelor’s degree or a Master’s degree.

17. The Tribunal informed the first named applicant that the Department stated that he has not continued to satisfy the criteria in subclass 573.231 or 573.223(1A) and therefore has not complied with condition 8516 of his Student visa. When asked whether he agreed with that, he responded that he wanted to study as per his objective but was unable to achieve a satisfactory standard of English and his education agent did not cooperate. He stated that he consulted another (education) agent to find out what he could do to continue his studies. He stated that he studied a Certificate IV course first with the objective of increasing his knowledge and proficiency to achieve his objective.

18. The Tribunal asked the first named applicant whether his Student visa conditions allowed him to do that and he responded no. When asked whether he agreed that he did not comply with condition 8516 of his Student visa, he responded that he agreed that he did not do it correctly. He stated that he tried his best so that he could study at university as per his of original aim. He stated that in Thailand he worked as a manager and completed a Bachelor of Business Administration degree and wanted a get a MBA degree. He stated that he did not want to come here just to work. He stated that he wanted to return to Thailand to his family and to work there. He stated that before he came to Australia people advised him to do a lower level course and have time to work here. He stated that he responded that he did not want to come to Australia to work as he had work in Thailand.

19. The records of the Department of Education indicate that the first named applicant enrolled in a MBA degree from 24 July 2017 to 21 June 2019. His enrolment in that course was cancelled on 2 August 2017 for non-commencement of studies. Since then he has not been enrolled in a Bachelor’s degree or a Master’s degree. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it may find that he has breached condition 8516 of his Student visa. He responded that he enrolled as soon as he came to Australia but did not commence his studies. He stated that his English language proficiency was not up to the required level, so he enrolled in a Certificate IV to upgrade.

20. The first named applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 8 June 2018. It indicates that he was issued with a subclass 573 Student visa on 14 June 2016 and the Tribunal finds accordingly. On the evidence before it, the Tribunal finds that his enrolment in a MBA was cancelled on 2 August 2017. There is no evidence before the Tribunal to indicate that he subsequently enrolled in an Advanced Diploma in the higher education sector or a Bachelor’s degree or a Master’s degree by coursework.

21. Therefore, the Tribunal finds that the first named applicant is not enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course and the principal course is of a type that was specified for a subclass 573 Student visa. Accordingly, the Tribunal finds that he does not satisfy the criterion in cl.573.231.

22. The first named applicant gave evidence that he did not commence the MBA degree because his English language proficiency was not up to the required level, so he enrolled in a Certificate IV course to upgrade (his English language skills). He has provided to the Tribunal a copy of an email from Charles Sturt University to him dated 2 August 2017 which indicates that his course at Charles Sturt University had been cancelled because he did not meet the English entry requirements to Charles Sturt University. He has not provided the Tribunal with any evidence that he meets the English entry requirements to Charles Sturt University.

23. Therefore, the Tribunal finds that the first named applicant has not given the Minister or the Tribunal evidence that he has a level of English language proficiency that satisfied his eligible education provider. Accordingly, the Tribunal finds that he does not satisfy the criterion in cl.573.231(1A)(a)(i).

24. In view of the above, the Tribunal finds that the first named applicant does not continue to be a person who would satisfy the primary criteria for the grant of the subclass 573 Student visa. Therefore, the Tribunal finds that he has not complied with condition 8516 of his Student visa.

    Consideration of the discretion to cancel the visa

25. Having found that the applicant has not complied with a condition of his Student 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’.

    Purpose of the applicant’s travel and stay in Australia. Did the applicant have a compelling         need to travel to or remain in Australia?

26. The first named applicant gave evidence that he had two objectives when he came to Australia. He stated that he was the Manager of the largest real estate company in Thailand and thought that if he improved his English and gained higher academic qualifications, he could attain higher levels in the company. He stated that his wife was working at the Hyatt Hotel in Thailand and she would also have an opportunity to progress in the company if she improved her English and gained overseas experience.

27. In a statement dated 8 January 2020 filed with the Tribunal, the first named applicant stated that he found out that friends who worked in the same position as he worked in in Thailand were paid a higher salary because they were able to communicate in English. He stated that this made him realise how important English is for his work. He stated that this was partly why he applied for a Student visa to study in Australia.

28. The Tribunal asked the first named applicant why he did not return to Thailand once he found out that his English language were insufficient to undertake an MBA degree in Australia. He responded that he consulted an (education) agent and asked him whether he could do another course and request another Student visa.  

29. The records of the Department of Education indicate that the first named applicant enrolled in an English for Academic Purposes course from 19 September 2016 to 30 June 2017 and completed that course. He also enrolled in the MBA and his enrolment was cancelled on 2 August 2017 for non-commencement of studies. He then enrolled in a Certificate IV in Marketing and Communications from 21 August 2017 to 17 August 2018 and a Diploma of Marketing and Communications from 8 October 2018 to 3 April 2020. His enrolment in both these courses was cancelled.

30. The Tribunal put this information to the first named applicant, pursuant to s.359AA of the Act, and noted that the only course he completed in Australia was an English language course. The Tribunal noted that it may find that he had not fulfilled the purpose for which the Student visa was granted to him and that his Student visa should be cancelled.

31. The first named applicant responded that when his Student visa was cancelled his enrolment in the Certificate IV was also cancelled. He stated that his (education) agent advised him to go to Court because his Student visa was cancelled. He stated that he consulted a lawyer to find out how to resolve his visa status. He stated that he was advised that he could not do anything other than to come to the Tribunal. He stated that he did not know how long it would take to get a hearing. He stated that he thought that if he enrolled in a course while waiting for his hearing before the Tribunal, he would not be able to complete the course and would waste his money. He stated that all he has done is to pay the fee and he has not accomplished anything.

32. There is no evidence before the Tribunal that the first named applicant applied for a different subclass of Student visa. There is also no evidence before the Tribunal that he is currently enrolled in a course of study.

33. The applicants’ migration agent submitted that the first named applicant has a compelling need to complete his degree in Australia for his career plan and family expectations.

34. Having considered the evidence, the Tribunal accepts that the first named applicant’s purpose when he came to Australia was to improve his English language skills, obtain a MBA and improve his career prospects. The Tribunal accepts that his family may have expectations of him. However, the Tribunal is not satisfied that he has demonstrated a compelling need to remain in Australia.

35. The Tribunal gives this consideration no weight in the first named applicant’s favour.   

    The extent of compliance with visa conditions

36. The Tribunal noted that the first named applicant had not been enrolled in a higher education degree for a considerable period of time and asked him what he had planned to do prior to being issued with the NOITCC. He responded that his (education) agent advised him that if he studied a Certificate course, he could get a visa for a Diploma level course and then a Bachelor level course. He stated that the plan was to study (the Certificate course) for another 6 months and then submit an application for another Student visa. 

37. The first named applicant stated that the alternative was to submit an application for another Student visa once he finished the English course. He stated that he thought that if that application was refused, he would have had to return to Thailand straight away. He stated that he is 36 years old and if he came here and gained nothing it would have been difficult. He stated that if he persevered and completed a degree as planned then it would have been better as it would have given him a better opportunity to get work. He stated that he has two children, a mother and grandmother for whom he is responsible.

38. The Tribunal asked the first named applicant whether he had breached any other condition of his Student visa. He responded that, apart from not studying the MBA, he had not breached any other conditions of his Student visa.

39. There is no evidence before the Tribunal to indicate that the first named applicant has not complied with the other conditions of his Student visa.

40. The Tribunal gives this consideration some weight in the first named applicant’s favour.   

    Degree of hardship that may be caused       

41. The Tribunal asked the first named applicant what hardship may be caused to him if his Student visa is cancelled. He responded that it is difficult for him to find work in Thailand that would give him sufficient income to look after his family. He stated that if he obtains a Master’s degree in Australia, he will be able to get a job in the public service even if he is unable to obtain employment in a company in Thailand. 

1. The applicants’ migration agent submitted that the degree of hardship that would be caused to the first named applicant is that it would affect his education in Australia, and he would not be able to obtain a qualification. She submitted that this would affect his future.

2. The Tribunal accepts that if the first named applicant’s Student visa is cancelled it would cause financial hardship to him and his family and may impact on his future employment.

3. The Tribunal gives this consideration weight in the first named applicant’s favour. 

   Circumstances in which the ground for cancellation arose

4. The circumstances in which the ground for cancellation arose are that the first named applicant failed to continue to be a person who would satisfy the primary criteria for the grant of the subclass 573 Student visa resulting in the breach of condition 8516 of his Student visa and the cancellation of this visa.

5. In a written statement dated 8 January 2020 filed with the Tribunal, the first named applicant stated that before he applied for a Student visa, he consulted an education agent. He stated that he was advised that if he undertook higher education in Australia, he would be able to work part time legally. He stated that he was told to undertake an English language test to determine whether his English language proficiency was sufficient to undertake university level studies. He stated that the results of the English language test indicated that he would need to undertake an English course for at least 10 months (before commencing his degree).

6. During the hearing, the first named applicant gave evidence that he undertook an English language course in Australia at a College (Embassy English) that was affiliated with Charles Sturt University. He stated that both Embassy College and Charles Sturt University recommended that he attain level 12 in the English language course before he commenced his MBA.

7. The first named applicant has provided to the Tribunal two Certificates of Completion and an ‘Overall Progress’ form from Embassy English. The first Certificate of Completion indicates that he undertook a General English course for 40 weeks from 19 September 2016 to 30 June 2017 and the second Certificate of Completion indicates that he undertook an IELTS Preparation Course for 17 weeks from 6 March 2017 to 30 June 2017. The ‘Overall Progress’ form indicates that he commenced the course at level 5 and progressed to level 7 with a target level of 12.

8. The Tribunal asked the first named applicant why he did not undertake another English course. He responded that he did not have confidence in the (education) agent. He stated that the education agent told him that he should be able to study English for 10 months and then pass. He stated that after 10 months the education agent advised him to study English for another 6 months. He stated that he asked his education agent what would happen if he studied English for another 6 months and did not pass. He stated that his writing skills are not very good. He stated that he thought that if he enrolled in another course at a lower level, he would be able to improve his vocabulary.

9. The first named applicant stated that in the COE it said he needed a pass in the English test. He stated that he undertook an English test before he came to Australia and they recommended that he study English for 10 months. He stated that he undertook an English course after he came here.

10. The first named applicant provided to the Department a copy of his COE for the MBA at Charles Sturt University. It indicates that his COE was conditional upon him achieving a minimum IELTS score of 6.0 in the writing band and no other band to be less than a score of 5.5 or he was required to successfully complete an EAP III program at Embassy English. The Tribunal asked him whether he sat an IELTS test in Australia (having completed an IELTS Preparation Course) and he responded no.

11. The Tribunal asked the first named applicant why he did not defer his MBA. He responded that he thought if he studied another course that would help him improve his English. He stated that if he deferred his MBA it would have cost more money. He stated that he promised his children that he would not be away from them for more than 5 years.

12. The Tribunal asked the first named applicant whether he spoke to the Department about the problems he was having. He responded no and stated that he only spoke to the Department once his Student visa was cancelled. The Tribunal asked him whether he consulted a migration agent. He responded that he did not. He stated that he was not aware of migration agents. He stated that after his Student visa was cancelled, he started looking for migration agents and lawyers.

13. The applicants’ migration agent provided written submissions dated 30 May 2018 to the Department. In those submissions, she submitted that the first named applicant was not confident that if he studied English for a further 6 months, he would be able to meet the English language entry requirements (for the MBA). She submitted that he undertook some research and found out that he could circumvent Charles Sturt University’s IELTS test requirements by studying a Certificate IV or Diploma for a minimum of one year.

14. The applicants’ migration agent submitted that the first named applicant then enrolled in a Certificate IV in Marketing and Communication. She submitted that he enrolled in a Certificate IV course and a Diploma course for the purpose of undertaking the principal course of study. She submitted that he was in the process of applying for enrolment in an MBA at Charles Sturt University, that it would be completed shortly, and evidence provided to the Department. She submitted that he intends to be a genuine student and hopes to complete his principal course and had no intention of breaching condition 8516 of his Student visa.

15. The Tribunal was provided with a copy of a Conditional Letter of Offer dated 30 March 2016 from Charles Sturt University for the first named applicant to study an MBA from 24 July 2017 to 21 June 2019. One of the conditions was that he met the English language requirements. As indicated above, he subsequently enrolled in this course and his enrolment was cancelled on 2 August 2017 for non-commencement of studies. The Tribunal has not been provided with any evidence that he is currently enrolled in an MBA or any other higher education course.  

16. The applicants’ migration agent submitted that during the first named applicant’s study his mother-in-law became ill and his wife returned to Thailand to look after her in hospital. She submitted that on 31 July 2017 he decided to withdraw from the MBA course at Charles Sturt University due to the medical emergency in relation to his mother-in-law. She submitted that he was under considerable mental pressure and this led to him giving up his studies. She submitted that his withdrawal request was approved on 2 August 2017 and he planned to depart Australia on 4 August 2017 but did not do so because he was told that his mother-in-law was getting better. She submitted that he had to withdraw from his principal course due to exceptional circumstances beyond his control.

17. The Tribunal has been provided with an English translation of a Medical Certificate, a document from a Travel Agency and a copy of correspondence between the first named applicant and Charles Sturt University. The Medical Certificate is dated 17 July 2017 and is issued in Thailand. It indicates that a 66-year-old female patient (presumably the first named applicant’s mother-in-law) was admitted to hospital on 10 July 2017 and discharged on 17 July 2017. It indicates that she has been diagnosed with spinal tuberculosis and an urinary tract infection. The document from the Travel Agency is dated 31 July 2017 and refers to a booking of a flight for the first named applicant to travel to Bangkok on 4 August 2017.

18. The correspondence provided to the Tribunal indicates that the first named applicant wrote to Charles Sturt University on 31 July 2017 requesting that he be allowed to withdraw from the MBA because his mother-in-law was seriously ill, he and his wife had decided to return to Thailand to take care of her and it was uncertain when he would be able to return to his studies. He stated that he therefore wished to withdraw from his studies rather than defer his studies. He also referred to the refund of his unspent tuition fees. He attached a document in relation to his flight to Thailand and the Medical Certificate in relation to his mother-in-law.

19. The correspondence indicates that Charles Sturt University wrote to the first named applicant on 1 August 2017 and stated that he had not registered and enrolled and, unless he arrived at the campus by 1 August 2017, his course and eCOE would be cancelled for non-commencement of studies. The first named applicant responded on 1 August 2017 indicating that he acknowledged that he did not register and complete his enrolment with Charles Sturt University. He stated that it was because he was about to make a decision to cancel his degree as his mother-in-law was seriously ill and he and his wife had decided to return to Thailand to look after her. He inquired about getting a refund of his tuition fees.                    

20. The records of the Department indicate that the first named applicant’s wife departed Australia on 12 July 2017 and returned to Australia on 20 July 2017. This was after her mother was discharged from hospital. She did not depart Australia thereafter. The Tribunal put this information to the first named applicant, pursuant to s.359AA of the Act, and noted that he was due to start his MBA on 24 July 2017 but did not do so. The Tribunal noted that he had told Charles Sturt University that he was unable to commence his studies because his mother-in-law was sick, and he was returning to Thailand. The Tribunal noted that it may find that his failure to commence his MBA had nothing to do with his mother in law’s illness.

21. The first named applicant responded that there were two issues. He stated that his English was not up to scratch and his mother-in-law was not well. He stated that he discussed with his education agent what he needed to say to defer his studies. He stated that they decided that he would not return to Thailand. He stated that his wife went back (to Thailand). He stated that she said her mother could not walk but they could arrange for someone to care for her. He stated that if they returned to Thailand without further qualifications it would be increasingly difficult to work and provide for the family including his mother-in-law who cannot work.

22. The Tribunal is not convinced by the first named applicant’s evidence. The Medical Certificate provided by him indicates that his mother-in-law was discharged from hospital on 17 July 2017, a week after her admission to hospital. There is no medical evidence that she became ill after that. The Tribunal is of the view that if his mother-in-law was seriously ill his wife would not have returned to Australia on 20 July 2017. The Tribunal is also of the view that if his mother-in-law became seriously ill after his wife returned to Australia she would have returned to Thailand, particularly as a flight was booked for 4 August 2017, but she did not do so. The Tribunal is of the view that his booking of a flight to Thailand was for the purpose of obtaining a refund of his tuition fees from Charles Sturt University and not because his mother-in-law was ill or because he had any intention of travelling to Thailand.

23. The first named applicant’s migration agent submitted that the first named applicant arranged to withdraw from the MBA on 31 July 2017 because of his mother-in-law’s medical emergency. She submitted that these were exceptional circumstances beyond his control. The Tribunal does not accept these submissions for the reasons given above and in view of her own submission that he enrolled in a Certificate IV and a Diploma in August 2017 so that he could circumvent the English language requirements at Charles Sturt University. The evidence indicates that he did not confirm his enrolment and commence his MBA on 24 July 2017 because he did not satisfy the English language requirements which was a condition on which the COE was granted to him.  

24. Having had regard to all the evidence, the Tribunal is of the view that the circumstances in which the ground for cancellation arose originated in the first named applicant’s decision to enrol in a MBA in Australia, after a short English course, without ensuring that he was able to meet the English language requirements to undertake the MBA. It may be the case that he relied on an education agent who misinformed him or ill-advised him or that he made the decision in the belief that he had sufficient language skills to be able to attain the necessary English language proficiency to undertake the MBA after a short English course in Australia.  

25. Having failed to reach the required level 12 English language proficiency at Embassy English, the first named applicant had the choice to defer his MBA and undertake a further English course at Embassy English so that he could satisfy the English language requirements to undertake the MBA at Charles Sturt University. However, he chose not to do so and instead enrolled in a Certificate IV in Marketing and Communications and a Diploma in Marketing and Communications in breach of conditions 8516 of his Student visa. This was not an exceptional circumstance beyond his control.

26. It was the responsibility of the first named applicant to ensure that he was aware of the conditions of his subclass 573 Student visa and that he complied with those conditions. He failed to do so.

27. The Tribunal does not give this consideration any weight in the first named applicant’s favour.

    Past and present behaviour of the applicant towards the Department

28. There is no evidence before the Tribunal to indicate that the first named applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department. The Tribunal gives this consideration weight in the first named applicant’s favour.   

    Whether there would be consequential cancellations under s.140 of the Act

29. The second named applicant, who is the wife of the first named applicant, was granted a Student visa on 14 June 2016 as a dependent on the first named applicant’s subclass 573 Student visa. When the first named applicant’s Student visa was cancelled on 8 June 2018, the second named applicant’s Student visa was automatically cancelled under s.140 of the Act.

30. The first named applicant gave evidence that his wife worked in housekeeping in a hotel in Thailand. He stated that she is also working in housekeeping in Australia. He stated that if she returns to working in housekeeping in Thailand at the age of 40 years it would be difficult. He stated that managerial work is not so difficult. He stated that most people want younger people with more energy to work in housekeeping as the work is “heavy”. He stated that if she gets experience in Australia, she will have the opportunity of returning to Thailand and becoming a supervisor. He stated that she may even be able to get to a higher level.

31. The Tribunal gives this consideration weight in the first named applicant’s favour.

    Legal consequences of a decision to cancel the visa

32. The first named applicant gave evidence that if his Student visa is cancelled, he will return to Thailand and look for work. He stated that it would be difficult because he has to look after two families.

33. If the first named applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. However, he may be eligible for a Bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalize his affairs in Australia before departing.

34. If the first named applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means that he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 may prevent him from being granted particular temporary visas for a period of 3 years from the date of cancellation. These are the intended legal consequences of a decision to cancel a visa.

35. The Tribunal does not give this consideration any weight in the first named applicant’s favour.   

    Australia’s international obligations

36. The Tribunal asked the first named applicant if there was any reason why he could not return to Thailand and he responded no.

37. There is no evidence before the Tribunal to indicate that the cancellation of the first named applicant’s Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in the first named applicant’s favour.

    Any other relevant matter

38. The Tribunal is not aware of any other relevant matter.

39. The second named applicant gave evidence that they are requesting that the Tribunal “show mercy” and allow them to have the visa. She stated that her husband wants a visa so he can study. She stated that she would like to ask for an opportunity.

40. The Tribunal has had regard to the submissions made by the applicants’ migration agent.

    CONCLUSION

41. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the first named applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    L. Symons
    Member

    
    

    ATTACHMENT

    Condition 8516:

    The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

    [573.231]    If subclause 573.223(1A) does not apply:

    (a)      the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

    (b)      the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

    (i)      made under regulation 1.40A; and

    (ii)      in force at the time the application was made.

    [573.223] (1A)   If the applicant is, and was, at the time of application, 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:

    (a)      the applicant gives the Minister evidence that the applicant has:

    (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii)      educational qualifications required by the eligible education provider; and

    (b)      the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)      any other relevant matter; and

    (c)      the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

    eligible higher degree studentmeans an applicant for a Subclass 573 visa in relation to whom the following apply:

    (a)      the applicant is enrolled in a principal course of study for the award of:

    (ia)    an advanced diploma in the higher education sector; or 

    (i)      a bachelor’s degree; or

    (ii)      a masters degree by coursework;

    (b)      the principal course of study is provided by an eligible education provider;

    (c)      if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

    (i)      the applicant is also enrolled in that course; and

    (ii)      that course is provided by the eligible education provider or an educational business partner of the eligible education provider.