Sharun (Migration)

[2019] AATA 3186

Sharun (Migration) [2019] AATA 3186 (15 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bin Ramli Sharun

CASE NUMBER:  1807705

HOME AFFAIRS REFERENCE(S):          BCC2018/146633

MEMBERS:Rachel Westaway (Presiding)

David Thompson

DATE:15 May 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 15 May 2019 at 5:34pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – not enrolled in registered course – inability to pay fees – impact on child of partner – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 March 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 delegate cancelled the visa on the basis that the applicant had not complied with paragraph 8202(2)(a) of condition 8202 by failing to maintain enrolment 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.

3. The applicant appeared before the Tribunal on 20 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from The Tribunal also received oral evidence from Ms Siti Azura Saidatul Binti Ahmad, the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

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

5. 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

6. 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.

7. On 22 February 2018 the applicant was sent a Notice of Intention to Consider Cancellation in regards to his student visa. The applicant did not respond to the notice.

   Did the applicant comply with Condition 8202?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. According to the applicant’s Departmental decision record, which the applicant provided to the Tribunal, the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had not been enrolled in a registered course of study since 7 June 2017.

10. At the hearing, the Tribunal explained to the applicant that its first task was to determine whether the applicant had breached a condition of his visa, and that if it decided he had breached a condition the Tribunal’s second task was to decide whether or not the visa should be cancelled.  The Tribunal explained that in performing these tasks it would have regard to the evidence in the Department’s file, the evidence in the Tribunal’s own file (including the written submissions and supporting documents lodged by the applicant’s representative Mr Lim, which included the applicant’s own statutory declaration), and any evidence given at hearing.  The Tribunal went on to explain to the applicant that the delegate had found that the applicant had breached a condition on his visa because he was not enrolled in a registered course of study or training from 7 June 2017, and that the delegate had relied on evidence found on the PRISMS system to do so.  The Tribunal then asked the applicant whether it was true that he had ceased being enrolled to study on 7 June 2017.  The applicant replied, unequivocally and with the benefit of the assistance of a translator, that this was correct. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

11. 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 purpose of the visa holder’s travel to and stay in Australia

12. The applicant entered Australia on a Subclass 572 Vocational Education and Training Sector visa. The purpose of that visa was to allow the applicant to stay temporarily in Australia to engage in a course of study or training, leaving Australia once that course was completed.  The applicant applied for, and was granted, his visa to allow him to undertake studies and training in English and hospitality, in the form of an English course and a Certificate III in commercial cookery.  Having been granted his visa, the applicant duly enrolled in those courses.

13. The applicant is 42 years of age. His written and oral evidence made it clear that before coming to Australia he had worked extensively in hospitality and had obtained considerable experience as a chef in restaurants in his home country of Malaysia. Prior to his arrival in Australia in June 2016 on his student visa, the applicant had visited Australia on 4 previous occasions as a chef in order to take part in events promoting Malaysian tourism.  The applicant stated that those visits were made in 2007, 2010, 2011, and 2013.  When asked why a chef that degree of experience wished to enrol in commercial cookery training courses, he replied that all of his previous training and experience was in Malaysian cookery and that he wished to learn Western-style cookery to advance his career.  There was no evidence before the Tribunal suggesting that the applicant would be unable to undertake such training outside of Australia, whether in Malaysia or elsewhere or indeed whether such training would enhance his employment opportunities.

14. In these circumstances, the Tribunal gives no weight to the purpose of the applicant’s travel to and stay in Australia as a factor tending against cancellation of his visa.  Rather, the Tribunal takes the view that in the circumstances of the case this factor weighs to a moderate degree in favour of cancellation.

    Circumstances in which the ground of cancellation arose

15. The applicant’s evidence was that the cause of his breach was his inability to pay his course fees for his Certificate III in commercial cookery, as a consequence of which his education provider terminated his enrolment. The applicant’s evidence was, in summary, that he obtained employment shortly after arriving in Australia at a Malaysian restaurant.  His employer promised to pay him $750 a week, and promised to pay his course fees as well.  His employer paid some medical expenses and the course fees for the applicant’s English language course, but only ever paid the applicant $150 - $200 per week towards his living expenses.  The applicant commenced his Certificate III studies but incurred debt to his education provider by failing to pay his fees.  When asked to pay the applicant’s course fees for his Certificate III course, his employer avoided the issue and did not pay. When it became clear to him that his employer would neither pay the course fees or the salary he owed to the applicant, the applicant resigned his employment.  The applicant said that his employer went out of business and closed his restaurant, and that he (the applicant) was unable to find other employment after that, except for a small amount of casual work. No documentary evidence was provided to substantiate any of these claims, and when the applicant was questioned about the basis on which he was paid, or was supposed to be paid, by his employer he stated that it was on a cash in hand basis. Ultimately, the applicant’s enrolment was terminated on or about 7 July 2017.

16. The Tribunal questioned the applicant about his asset position, pointing out to him that in order to obtain his visa he had to satisfy the Department that he had access to funds sufficient to pay his course fees and living expenses for the time he was in Australia.  The applicant stated that he had approximately 100,000 Malaysian ringgits in a public superannuation fund in Malaysia. When asked why he had not drawn on those funds to pay his course fees, the applicant said that obtaining funds from that source would take several months.

17. On the applicant’s account of events, his loss of employment could not be said to have been his fault.  However, that does not mean that his breach of condition was not his fault, or beyond his control.  The applicant had the option of accessing his funds in Malaysia, of finding other employment, or of leaving Australia and reapplying to study when his financial position was better.  Any of these options would have allowed him to avoid breaching his visa conditions.  Further, the position in which the applicant found himself was the very position the financial condition on his visa was designed to avoid.  The Tribunal consequently gives little weight to the circumstances in which the breach in question arose as a factor in favour of not cancelling the visa.

    Extent of compliance with visa conditions

18. As at the date of the NOICC, the applicant had been in Australia under his visa for approximately 1 year and 8 ½ months. Of that period, he had been in breach of condition 8202(2) on his visa for approximately 8 ½ months.  This is a significant period.  A breach persisting for such a large proportion of the relevant period cannot be characterised as trivial or insubstantial, nor did the applicant attempt to so characterise it.  Indeed, the applicant admitted that as at the date of the hearing he remained unenrolled. The Tribunal asked the applicant what he did when he realised he would not be able to pay his course fees.  His answer was that he went to his education provider to discuss stopping or suspending his enrolment, and then contacted the Department to discuss the position.  The applicant’s evidence was that the Department informed him that he visa would end if he left Australia. At that point the applicant appears to have taken no further action.  The Tribunal considers that this factor favours cancellation and gives it considerable weight.

    Past and present behaviour of the visa holder towards the Department

19. There is no evidence before the Tribunal that the applicant has failed or refused to cooperate with the Department, or has behaved towards it in any way that would constitute a ground for refusing to continue his visa.  However, the applicant’s behaviour in that respect is no more than is to be expected of any visa holder.  This factor weights in favour of continuing the applicant’s visa, but only slightly.

    Whether there would be consequential cancellations under s.140

20. No person holds a visa as a member of the applicant’s family unit, so no visa would be cancelled under s.140 as a consequence of cancellation of the applicant’s visa.  The Tribunal gives no weight in either direction.

    Whether there are mandatory legal consequences of cancellation

21. The only mandatory legal consequence of cancellation raised by the facts before the Tribunal is that the applicant will be barred from applying for a further visa to enter Australia for a period of three years, unless his further application falls within one of the categories of application listed in Regulation 2.12.  However, this is simply an ordinary consequence of breaching condition 8202 and a detriment to be expected.  The Tribunal takes the view that in the circumstances of the current case this consequence is a neutral factor, weighing neither for nor against cancellation.

    Degree of hardship that may be caused

22. The applicant gave evidence that in August 2017 he met his current partner, Ms Siti Azura Saidatul Binti Ahmad, that on 11 November 2017 they commenced cohabitation as life partners, and that with them live Ms Azura’s son and daughter, aged 13 and 14 respectively.  The applicant and Ms Azura share the care of the children, depending on their working schedules.  This was confirmed by Ms Azura, who gave evidence at the hearing. Both the applicant and Ms Azura gave evidence that they were shortly (in a matter of days following the hearing) to be married. On 8 April 2019 the applicant provided the Tribunal with a post hearing submission which included a certified copy of the Certificate of Marriage and a certified copy of the Islamic Marriage Certificate. The Tribunal accepts that the applicant is officially married. 

23. If the Department’s decision to cancel the applicant’s visa is affirmed, it may be accepted that the applicant is likely to suffer at least a degree of emotional hardship as he will be required to leave Australia in due course and thus may be separated from his new wife and stepchildren. The applicant and his new family do, however, have options to address and ameliorate this hardship. They may, for instance, travel to spend time together.  Further, and subject to the issue mentioned in paragraph 21 of these reasons, the applicant may apply for a new visa. There is no evidence before the Tribunal suggesting that the applicant himself will suffer any other form of hardship, such as financial or psychological hardship.

24. The Tribunal heard evidence from Ms Azura. It also received a document from Ms Azura prior to the hearing, in the form of a letter attached (although not exhibited) to the applicant’s statutory declaration. The statements made in that letter are consistent with Ms Azura’s oral evidence. Whilst the Tribunal has given careful consideration to Ms Azura’s letter, as indeed it has to all the evidence presented in this case, it is not necessary to treat the letter separately in these reasons. Ms Azura’s evidence, which was given without her having heard the applicant himself give evidence, tended to confirm the applicant’s evidence as to the circumstances of their relationship and domestic life.  Ms Azura presented as an open and frank witness, and gave the Tribunal no reason to doubt her sincerity.  On the basis of that evidence, it may be said that Ms Azura would also be likely to suffer emotional hardship if the Tribunal were to uphold the Department’s decision under review.  Indeed, the remarks made regarding the applicant in paragraph 23 of these reasons largely apply to Ms Azura as well.  However, in the circumstances of the case it seems more than likely that Ms Azura’s children would continue to live with her, and that she would become their primary caregiver, as was the case before her relationship with the applicant. This gives rise to two important differences, between the applicant’s and Ms Azura’s position. Firstly, Ms Azura would likely suffer some financial hardship in that she would find it harder to work as the sole carer for two children. Secondly, Ms Azura would almost inevitably bear the brunt of any hardship the applicant’s departure from Australia caused to her children.

25. Ms Azura gave evidence about the relationship between the applicant and her two children.  Her evidence was, in summary, that while both her children are in contact with, and regularly see, their natural father (who lives in Malaysia) he has not been a consistent presence in their lives. In Ms Azura’s opinion, the applicant’s presence in her children’s lives has supplied some of the emotional connection with a father figure that has been lacking in their lives to date. Her evidence was that both children have formed a real bond with the applicant, and have accepted him as part of their family. Ms Azura stated that in her view if the applicant were forced to depart Australia both her children would suffer emotional distress and hardship, but also that Ms Azura’s daughter, Miss Saidatul Afiera Binti Abas, would suffer psychological hardship.

26. Ms Azura gave evidence that before she started her relationship with the applicant her daughter had suffered from anxiety problems for several years, was withdrawn both in public and at home, and had suffered panic attacks from time to time.  The Tribunal asked whether Miss Abas had received treatment for these problems. Ms Azura said that she had been referred for psychological help through Fiona Stanley Hospital, but did not provide any details of the any treatment Miss Abas might have undergone, either oral or documentary, or any documentary evidence of her condition.  Ms Azura stated that the applicant’s presence in their household had had a marked and positive effect on Ms Abas’s condition, and that she feared that Ms Abas might suffer a relapse if the applicant were forced to leave Australia.

27. The applicant submitted a letter from Miss Abas dated 14 March 2019 to the Tribunal.  As with Ms Azura’s letter, Miss Abas’s letter was attached (although not exhibited) to the applicant’s statutory declaration.  In general terms, Miss Abas’s letter testifies to the emotional connection she has formed with the applicant and to the good effect he has had on Ms Azura’s household.  Miss Abas states that “when I was informed that Uncle Sha [the applicant] would be most likely leaving us, I was devastated. One of the most important people in my life that looked after me when one couldn’t, just gone.  The fact of him leaving would make everything we had holding together come crumbling back down. My mum wouldn’t be as happy, my brother wouldn’t have someone to laugh with every day and I would forget how it was like to have a father.” Miss Abas’s letter is generally consistent with Ms Azura’s evidence regarding her daughter, although it does not provide any further detail as to Miss Abas’s psychological condition. That is not surprising.

28. The emotional hardship the applicant’s departure on Ms Azura and her children is likely to cause is a factor weighing towards setting aside the Department’s decision and continuing the applicant’s visa.  However, as noted above, the applicant and Ms Azura have avenues open to them that will allow that hardship to be ameliorated.  The possibility that the applicant’s departure will cause Miss Abas psychological hardship also weighs in favour of setting aside the Department’s decision, but neither the applicant nor Ms Azura have given any detailed or particular evidence as to such matters as any professional diagnosis that might have been made of Miss Abas’s condition, or any course of treatment she might have undertaken, and no third party evidence has been placed before the Tribunal to corroborate or particularise Ms Azura’s evidence on this point.  For this reason, the Tribunal can only give the ‘hardship’ factor moderate weight.

    Any other relevant matters

29. The applicant and Ms Azura gave evidence that the applicant now has work and that they are now in a position to fund the applicant to undertake at least a Certificate III course in commercial cookery.  In addition, the applicant stated that it was his desire to do so.  There is, however, no evidence before the Tribunal suggesting that the applicant had made any application for admission to such a course, or that the applicant’s work and family commitments would allow him to do so.  The Tribunal gives this factor no weight as a factor tending towards setting aside the Department’s decision to cancel the applicant’s visa.

1. No other relevant matters have been raised before the Tribunal.

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

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

   Rachel Westaway
   Senior Member

   
   

   David Thompson
   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.