SEO (Migration)

[2019] AATA 6253

SEO (Migration) [2019] AATA 6253 (6 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHANSEOK SEO

CASE NUMBER:  1804119

HOME AFFAIRS REFERENCE(S):          BCC2017/4009818

MEMBER:Joseph Lindsay

DATE:6 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 06 November 2019 at 4:41pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa –applicant failed to attend tribunal hearing – not enrolled in a registered course of study – breached condition 8202– didn’t take any action to ensure he did not breach condition 8202 –no documentary evidence–decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant was invited to have a hearing before the Tribunal on 1 November 2019 at 12:30pm. However, the applicant failed to appear for the hearing. Prior to the hearing, on 16 October 2019, the applicant’s representative contacted the Tribunal to advise that he no longer represented the applicant. Further, the representative indicated that the applicant took the file from the representative’s office in September 2018 and the representative did not know the whereabouts of the applicant.

3. The Tribunal reasonably expects the applicant to be aware that they are responsible for keeping their contact details up to date with the Tribunal, yet the applicant has made no such contact with the Tribunal.

4. In any event, on 17 October 2019, the Tribunal sent an email to both the representative and the applicant confirming that:

   -on 16 October 2019, the representative advised the Tribunal he was no longer acting for the applicant.

   -the Tribunal advised the representative that, as the applicant’s authorised recipient, by law the Tribunal was required to continue to send the representative correspondence in connection with the review unless and until the applicant advises otherwise.

   -the Tribunal provided a letter to the representative requesting the applicant to confirm his advice that the representative was no longer to receive correspondence in connection with the review.

   -the Tribunal advised the representative that, by providing him with these documents, the Tribunal was taken to have given the documents to the applicant, and that the representative should ensure that the applicant is informed of this letter as soon as possible.

5. In addition, there is evidence that a SMS message was sent from the Tribunal to the applicant on 31 October 2019 notifying him of the scheduled hearing. 

6. Neither the applicant nor the representative attended the hearing. 

7. There has been no response from the applicant at all in respect to his wishes in regards to the hearing or any reason why he could not attend.

8. If the applicant had appeared at the hearing, the Tribunal would have had the opportunity to ask questions of the applicant. The Tribunal would have had the opportunity to ask the applicant why he appeared to breach condition 8202 of his Subclass 572 Vocational Education and Training Sector visa, where he did not remain enrolled in a registered course of study since 3 February 2017.

9. The Tribunal would have had the opportunity to ask the applicant why he appeared not to take reasonable steps to proactively engage with his course provider or the Department in respect to his enrolment situation.

10. Accordingly, the Tribunal has decided to make a decision on the available evidence. 

11. 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

12. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

    Did the applicant comply with Condition 8202?

13. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

    ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

14. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

15. The Tribunal notes that in the delegate’s decision record, as supplied to the Tribunal by the applicant’s appointed representative, it was noted that the applicant had not remained enrolled in a registered course of study since 3 February 2017.

16. Condition 8202(2)(a) of the applicant’s student visa required him to remain enrolled in a registered course of study.

17. In the applicant’s response to the Department dated 31 January 2018 he indicated that he thought he thought he was enrolled in a registered course as he paid tuition fees of $1500 to AITE in March 2017, via his agent. He also indicated that he kept doing assessments as he didn’t realise he didn’t have a COE. The Tribunal accepts the applicant’s submissions in this respect. However, the Tribunal places higher weight on the evidence that the applicant had not remained enrolled in a registered course of study since 3 February 2017 because it is the applicant’s personal responsibility to take reasonable actions in regards to their course provider and the Department to ensure that they remain enrolled in registered course of study.

18. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 3 February 2017. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

19. 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. 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 circumstances in which the ground for cancellation arose

20. In the applicant’s response to the Department dated 31 January 2018, he indicated:

    -He had transferred course providers because he wanted to study Marketing and Communication;

    -He applied through an agent (Good Day Australia) and paid the fees to the agent in March 2017, but his agent did not give him any Conformation of Enrolment (COE) documents.

    -He did not know he was not holding a COE;

    -He had done all the assessment until December 2017 for the Certificate IV in Marketing and Communication.  

21. The Tribunal notes that the applicant provided copies of what appear to be examples of work the applicant had done for his studies. In addition, the applicant had provided other COE documents.

22. However, the applicant provided no indication as to why he appears not to have approached his course provider or the Department at any time in order to notify them of his situation or his concerns. There is no indication of what steps the applicant took, if any, to address any concerns about his enrolment at the time he ceased to be enrolled in a registered course of study on 3 February 2017.

23. Accordingly, the Tribunal does not accept that the applicant took reasonable steps to maintain his enrolment. The Tribunal finds that the applicant did not contact his course provider or the Department to notify them of his circumstances or to request assistance in an endeavour to maintain his course enrolment. Accordingly, the Tribunal places high weight on this information against the applicant.

24. The Tribunal accepts that the applicant obtained a further enrolment on 17 January 2018 –after he was issued the Notice of Intent to Consider Cancellation (NOICC) on 16 January 2018 and a very long time after he ceased to be enrolled in a registered course of study on 3 February 2017. However, the Tribunal places no weight on this information in the applicant’s favour because this information has no relevance as to the circumstances in which the ground for cancellation arose in early 2017.

25. In addition, the Tribunal finds that the applicant, and not his agent, is ultimately responsible for managing his course enrolment status. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

26. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

27. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

28. The applicant has provided no information in regard to the hardship that may be caused to him if his student visa was cancelled.

29. There is no evidence that the applicant would be caused any hardship at all if his student visa were to be cancelled.

30. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

31. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

32. The applicant does not have any dependents on his student visa who would be affected if his student visa was cancelled.

33. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

34. The Tribunal reasonably expects that applicant would be reasonably aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

35. The Tribunal reasonably expects that applicant would be reasonably aware that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to South Korea.

36. The Tribunal reasonably expects that applicant would be reasonably aware that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

37. The Tribunal places low weight on this information in the applicant’s favour.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

38. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

39. The Tribunal is not aware of any other relevant matters before the Tribunal.

    Conclusion

40. The Tribunal finds that the applicant received his Subclass 572 Vocational Education and Training Sector visa on 11 February 2016.

41. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 3 February 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

42. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.

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

    DECISION

44. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Joseph Lindsay

    
    

    Member

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.