SIBUNARYA (Migration)

[2019] AATA 6123

SIBUNARYA (Migration) [2019] AATA 6123 (17 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Boni SIBUNARYA
Amanda Putri Wongso
Jacqueline Princessa Sibunarya
Jordan Prince Sibunarya

CASE NUMBER:  1700567

HOME AFFAIRS REFERENCE:               BCC 2016/3937426

MEMBERS:Lilly Mojsin (Presiding)

Brian Camilleri

DATE:17 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 573 Higher Education Sector visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 17 October  2019 at 10:05am

Statement made on 17 October  2019 at 10:15am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – study history, changes of colleges and courses, and cancellation of enrolments – illnesses and deaths of parents in home country – birth of child with congenital condition requiring operation – mental health – life in Australia, wife’s employment and children’s schooling – future study plans and business goals – decision under review set aside for first applicant, no jurisdiction for other applicants

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 January 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the Subclass 573 Higher Education Sector visa (“student visa”) of Boni Sibunarya under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The relevant terms of s116 (1) (b) of the Act and of Condition 8202 are contained in an Appendix to this decision.

3. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study since 5 December 2015 and he therefore had not complied with condition 8202(2)(a) attached to his visa.

4. On 11 January 2017 the applicant lodged an application for review with the Tribunal.

5. The applicant appeared before the Tribunal on 14 February 2019 to give evidence and present arguments. The Tribunal also received supplementary oral evidence from the applicant’s wife. The applicant was not represented by a registered migration agent.

6. The immediate family members of the applicant (all of whom presently reside with him in Australia) are consequently affected by the cancellation of the applicant’s visa. These persons are:

   ·     Amanda Putri WONGSO (the wife of the applicant) (30 yrs).

   ·     Jacqueline Princessa SIBUNARYA (7 yrs).

   ·     Jordan Prince SIBUNARYA (4 yrs).

   ·     A third child (a son) (1 yrs)

7. 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 Boni Sibunarya. The dependent visas of the three members of his family listed above were automatically cancelled as a consequence of the cancellation of the student visa, by force of the operation of s.140 (1) of the Act. As no decision was involved in the visa cancellation under s.140 (1), the Tribunal has no jurisdiction with respect to the other applicants.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. As stated above the issue 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) (b) of the Act, the visa may be cancelled.

9. The updated Provider Registration and International Student Management System (PRISMS) (dated 13/02/2019 at 3:02 pm) as presented to the applicant at the Tribunal hearing on 14 February 2019 and showed that on 12 December 2016 the applicant had provisionally enrolled in a further course (a matter commented upon by the delegate of the Minister in his Decision Record of 9 January 2017 which was attached to his application for review).

10. Relevantly, conditions attached to the visa require that the applicant:

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

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

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

11. The applicant was notified of the intention to consider cancellation (NOICC) by letter dated 16 December 2016.

12. At the time of receipt of the NOICC in December 2016 (the applicant was employed at Maggio’s Café Deli Gelato Bar.  Andrew Maggio, represented the applicant in respect of a 457 visa application but did not provide correct Forms to the Department. The Department was misinformed regarding responding to the NOICC.

13. The Department received a response from the applicant on 4 January 2017.  On 9 January 2017 the department attempted to contact the applicant but did not receive a response and on 9 January 2017 the delegate proceeded to cancel the visa on the basis that the applicant had failed to respond.

14. The Department decision of 9 January 2017 was in part based on a PRISMS report that showed that the applicant was not enrolled in a registered course of study from 5 December 2015 to 19 December 2016. The applicant conceded this before the Tribunal.

15. As the applicant conceded that he was not enrolled in a registered course of study from 5 December 2015 to 19 December 2016 the Tribunal finds that the applicant has not complied with Condition 8202 (2)(a) and therefore the visa may be cancelled.

16. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

    Consideration of the discretion to cancel the visa

17. There are no matters specified in the Act or Regulations which it is mandatory to consider in the exercise of the discretion to cancel the visa. However, the Tribunal has had regard to the circumstances of this review, including matters raised by the applicant, and matters contained in the Department’s Procedures Advice Manual (PAM3) “General visa cancellation powers”.

18. The relevant date at which the Tribunal must consider the issue whether or not the visa should be cancelled is the date of the Tribunal’s decision.

DECISION WHETHER TO CANCEL

Assessment of relevant factors

1. The applicant provided (both in his response to the NOICC received on 4 January 2017 and resubmitted to the Tribunal at the Hearing on 14 February 2019) the evidence of the circumstances by which the conditions of his visa were breached and the reasons the applicant relies upon to justify his contention that the visa should be allowed to continue.

2. The applicant provided a submission of 8 February 2019 to the Tribunal. Also provided were

   ·death certificates;

   ·medical report regarding the applicant’s parents;

   ·medical report regarding the applicant's son;

   ·copies of diplomas and academic transcripts.

3. The Tribunal has made its decision and exercised its discretion with regard to relevant factors set out below.

   The purpose of the applicants travel to Australia

4. The Tribunal is satisfied that the purpose of the applicant’s travel to Australia was in order to study and obtain qualifications.

5. The Tribunal has regard to the student visa granted on 23 November 2014 and the events thereafter. The Tribunal notes that the applicants PRSIMS record shows an extensive history (prior to 2014) of courses all of which were completed or interrupted Since arriving in Australia the applicant has enrolled in the following courses:

Course Description	From	To	Reason: Events occurring during studies course and relevant to breach of Condition 8202
1	2014	61677C76-IELTS Preparation 1 & 2 (Upper Intermediate to Advanced (12 to 24 weeks [067734G]	3/03/2014	15/06/2014	Cancelled
2	2014	64255F13-Certificate IV in Screen and Media (072559)	7/04/2014	14/12/2014	Cancelled
3	2014	6484C134-Diploma of Management (064332F)	19/05/2014	31/10/2014	Finished
4	2015	61646F21-Bachelor of interactive Media [074192G] 13/02/2015 Variation Reason: Deferment/Suspension-Compassionate and compelling circumstances	6/07/2015	29/06/2018	Cancelled: 1)     Mother sick (2014) and died (2015) 2)     father sick (2015) and died (2016) 3)     third child born with congenital liver defect and operated (2015) 4)     psychologically sick throughout the whole of this period
5	2015	6484817-Advanced Diploma of Management (064331G)	13/07/2015	04/12/2015	Finished:
6	2015	61646F21-Diploma of Screen and Media (072557M) Variation Reason: Non commencement of studies	5/01/2015	13/12/2015	Cancelled: 1)     Mother sick (2015) and died 2)     psychologically sick throughout the whole of this period
7	2015	6488AA44-Bachelor of Interactive Media (074192G) Variation Reason: Non commencement of studies	27/07/2015	13/07/2018	Cancelled: 1)     Mother sick (2015) and died 2)     father died (2016) 3)     child Jordan (son) born with congenital liver defect and operated upon 4)     psychologically ill throughout the whole of this period
8	2015	73EDCC54-Advanced Diploma of Management 9064331G)	13/07/2015	4/12/2015	Finished
9	2015	6F5F9369-Bachelor of Interactive Media (074192G) Variation Reason: Non commencement of studies	27/07/2015	13/07/2018	Cancelled: 5)     Mother sick (2015) and died 6)     father died (2016) 7)     child Jordan (son) born with congenital liver defect and operated upon 8)     psychologically ill throughout the whole of this period
10	2016	87D40A20-Certificate III in Hospitality (081950K)	5/12/2016	8/12/2017	Cancelled: Due to Visa cancellation on 9 January 2017
11	2017	Not able to study due to visa cancellation on 9 January 2017

1. The applicant has completed 3 courses since his arrival in Australia. The applicant has cancelled a number of other studies due to a number of factors such as his illness, his parent’s death and birth of his child.  The Tribunal accepts that the applicant has explained his reasons for cancellation and/or non-commencement of studies were due to factors beyond his control. These included illness and death of his parents, a child born with medical complications and the applicant’s own psychological issues. 

2. The Tribunal places weight on the above outlined factors in favour of not cancelling the visa.

   The extent of compliance of the applicant with any conditions subject to which his visa was granted

3. The applicant did not provide to the Tribunal a current Certificate of Enrolment in a CRICOS registered course of study with an education provider in Australia or provisionally for a future date.

4. The Tribunal places weight on this factor in favour of cancelling the visa.

   The degree of hardships that may be caused to the applicant or the applicants family members

5. The applicant claims that he is mortified and ashamed of the prospect of the affirmation of the cancellation of this visa. He claims that he feels that “cancellation would put into question his honesty and character”; “would imply that his behaviour towards the Department and towards Australia has been dishonest since arrival” and “would imply that an application for a student visa was made under false pretenses and not in good faith”; and “its consequence would deprive him of the chance of four years of sponsorship”.

6. The Tribunal accepts that the applicant’s family would suffer hardship if returned to Indonesia, his wife is employed in Australia  and his children have been attending school in Australia and have developed a lifestyle they enjoy in Australia. 

7. The Tribunal places weight on this factor in favour of not cancelling the visa.

   The circumstances in which the grounds for cancellation of the higher education student visa arose

8. The applicant initially arrived in Australia in 2008. He was not married. The purpose of his arrival was to study. He was 20 years of age. He completed a Diploma of Information Technology. He later followed this up with a course in Advanced Diploma at the Sydney Business Information and Technology (which was interrupted as outlined below).

9. The applicant asserts that throughout the course of his studies he had attended and completed every course in which he had enrolled. On 2/08/2010 he was enrolled in a Diploma of Business, from which he withdrew on 07/05/2011, after having sought guidance from Department of Immigration, Student Section seeking a transfer into another Institution and enrolling in Advanced Diploma of Information Technology, (which he completed successfully).

10. The applicant enrolled in a Business Management course. However, half way through this course his father (now ill) requested the applicant to return to Indonesia to help him run the family business. The applicant returned to Indonesia in 2011 and worked with his father in the family’s supermarket business.  In 2012 the applicant and his wife were married in Indonesia and their first child, their daughter; was born in West Kalimantan.

11. On 19 February 2014, the applicant, his wife, and their eldest child came to Australia to enable the applicant to pursue his higher education and to continue an Advanced Diploma in Management course at the Wentworth Institute, Sydney. The applicant commenced his Diploma of Management on 19 May 2014 and completed the qualification on 31 October 2014.

12. The applicant was informed that medical tests had revealed that his mother was diagnosed with a terminal illness and as the illness progressed, the only treatment available would be palliative care. The applicant obtained a deferral on compassionate grounds by the Institution of his Bachelor of Interactive Media studies until  21 May 2015. The applicant, (along with his wife and children) travelled to West Kalimantan to visit his terminally ill mother. They stayed in West Kalimantan for several weeks and returned to Australia on 19 June 2015.

13. As the Bachelor degree for which he was enrolled was scheduled to commence on 6 July 2015 the applicant enrolled in an Advanced Diploma of Management with the same institution (the Wentworth Institute), with the claimed intention to commence the Bachelor degree program at its next scheduled in-take in February 2016. The applicant  intended to rely on the recognition of credits derived from the earlier completion of the Advanced Diploma of Management course.

14. On 11 November 2015, the applicant's child was born with left duplex kidney that required surgery. This made him feel “very guilty” and he was no longer able to concentrate on his studies. During 2015 the applicant commenced working at Maggio’s Café Deli Gelato Bar, at Cammeray NSW as Chef.  In December 2015 the applicant was enrolled in Certificate IV in Screen & Media course.  In December 2015, the applicant's employer submitted a 457 Sponsorship and Nomination and visa application. The applicant stopped studying after lodgement of subclass 457 visa application on 8 December 2015 as advised by his employer. He continued to work whilst still unwell.

15. The 457 Nomination was refused. The applicant claims he was not made aware of this by his employer and he continued working part-time with the sponsoring employer. He claimed he did not seek exemption. In May 2016 the applicant’s father was diagnosed with advanced lung cancer. The applicant and all dependent family members departed Australia on 19 July 2016 and returned to Australia on 7 October 2016 and have remained in Australia since that date.

16. The applicant says he fell further into depression. The applicant says that having withdrawn from studies; he could not concentrate any more he had a discussion with the College to be allowed to take time off to recuperate. On 3 November 2016, the employer lodged a new nomination application. The nomination application for a 457 visa was refused by the Department on 6 February 2017. The applicants decided to withdraw their sub-class 457 visa application in order to avoid refusal.

17. The applicant says he is likely to get a 1-year credit for any Bachelor qualification on the basis of completing his Diploma and substantial part of Advanced Diploma courses from the same institution. The applicant says he expects that he will be able to complete the Bachelor of Interactive Media qualification in 1.5 years by attending the summer term. The reason for selecting Interactive Media as a course is to develop skills to develop an online business rather than continue a shop front business.

18. The Tribunal places weight on the above factors in favour of not cancelling the visa.

    The applicant’s past and present behaviour towards the department.

19. There is no evidence before the Tribunal to suggest that the applicant has not been cooperative in providing information to the department when requested of him. There is no evidence to indicate he has not complied with previous visa conditions or that he has not been co-operative with the Department. This weighs in favour of not cancelling the visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

20. Any cancellation of the applicant’s student visa would result in the automatic consequential cancellation by operation of law under section 140 of the Act, of the visa of any other person. Therefore the Tribunal has given weight to these considerations in the applicant’s favour and against cancellation.

    Legal consequences of a decision to cancel a visa

21. If the visa was to be cancelled this would bring about the consequence that the applicant would become an unlawful non-citizen and liable to detention under s 189 and removal under s198 of the Migration Act 1958 (if he did not voluntarily depart Australia with his dependents). In addition, the effect of section 48 of the Act would result in the applicant having very limited options to apply for further visas in Australia and would need to depart Australia and apply from overseas to pursue most types of further (other) visa applications. Therefore the Tribunal has given weight to these considerations in the applicant’s favour and against cancellation.

22. Further, If the visa was to be cancelled the applicant would incur a penalty in the sense that if the applicant has lodged a new visa application then the applicant is required to meet Public Interest Requirement 4013, and that new visa application may not be approved for a further period of the next three years. Therefore the Tribunal has given weight to these considerations in the applicant’s favour and against cancellation.

23. If the visa was to be cancelled then the applicant, as a citizen of Indonesia, has a travel document enabling him to return there upon departing from Australia.  However, the statutory consequences when a visa is cancelled under these grounds are that:

    ·If the TU-573 Higher Education Sector visa is cancelled, the applicant will not necessarily be immediately removed from Australia.

    ·The applicant would be eligible to apply for a Bridging Visa E to allow him reasonable time to arrange to depart Australia.

    ·There is no evidence that the cancellation of the applicant’s TU-573 Higher Education Sector visa would lead the applicant to being held in detention; or that indefinite detention as possible consequence of cancellation of the student visa. (I.e. whilst a failure to depart Australia could nevertheless ultimately result in detention or removal action, it is not an inevitable consequence of any decision to cancel his visa).

    ·There is no evidence that a cancellation would impact on any victims of family violence.

    Whether Australia has international obligations that would or may be breached as a result of cancelling the applicant’s student visa

1. The Tribunal considered whether Australia has international obligations that would (or may) be breached as a result of cancelling the applicant’s student visa and finds that cancellation of the applicant’s student visa would not result in engaging Australia's international obligations.

   Are there children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation?

1. As set out above the Tribunal considers that there are children whose interests would be affected by any cancellation of the applicant’s visa and this weighs in favour of the applicant. The Tribunal has given weight to these considerations in the applicant’s favour and against cancellation.

   Does cancellation lead to removal in breach of Australian's non refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment?

2. The applicant has not made claims of being in need of protection nor has he applied for protection. There is no matter or claim before the Tribunal to suggest that his removal, had it been considered necessary, would lead to a breach of Australia's non-refoulement obligations.

   Other relevant factors assessed

3. Having considered the evidence and all factors identified above, the Tribunal is satisfied it has considered all the relevant additional factors.

4. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

5. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant's Subclass 573 Higher Education Sector visa.

   The Tribunal has no jurisdiction with respect to the other applicants.

Lilly Mojsin

Member

Brian Camilleri
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.