SING (Migration)

[2019] AATA 6151

SING (Migration) [2019] AATA 6151 (21 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHURK WING SHAWN SING

CASE NUMBER:  1725924

HOME AFFAIRS REFERENCE(S):          BCC2017/2828283

MEMBER:Dominic Triaca

DATE:21 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 October 2019 at 4:12pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – not enrolled in registered course – course not registered – not full time course – vague evidence – significant breach – now studying nutrition online – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

CASES

Boettcher v Driscoll (2014) SASC 86
Dimic v Djekovic (2014) NSWSC 1502
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 October 2017 made by a delegate of the Minister for Immigration and Border Protection 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’s student visa was granted on the basis that the applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia.

3. The delegate cancelled the visa on the basis that he had breached condition of the visa which required him to continue to be enrolled 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.

4. The applicant appeared before the Tribunal on 30 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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.

   Did the applicant comply with Condition 8202?

7. 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).

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

9. The applicant was granted a student visa on 30 November 2015. On 15 September 2017, the Department notified the applicant of the intention to consider cancellation (NOICC) and invited the applicant to respond in writing. The applicant did not respond. On 9 October 2017, the applicant’s visa was cancelled by the delegate of the Department (delegate’s decision). On 23 October 2017, the applicant applied to the Tribunal for a review of the decision.

10. In the course of this application, the applicant provided the Tribunal with no documentation to advance his claim, save for one document produced at the hearing. This was a Certificate of IV in Fitness from Australian Institute of Fitness dated 16 October 2017. The Tribunal has taken this document into account.

11. The delegate’s decision stated that the applicant had not been enrolled in a registered course of study from 30 November 2016 and identified that the applicant was not enrolled in a registered course of study for a period of approximately 10 months at the time of the delegate’s decision.

12. In his evidence before the Tribunal, the applicant confirmed that this was true and correct that he had not been enrolled in a registered course since 30 November 2016.

13. The Tribunal notes that the applicant’s study of a Certificate IV in Fitness from Australian Institute of Fitness was not a registered course in the CIRICOS system and, in any event, on the applicant’s evidence was not a full time course of study. Accordingly, the completion of this Certificate IV in Fitness does not assist the applicant demonstrating enrolment in a registered course of study.

14. Accordingly, on the evidence before the Tribunal, the applicant was not enrolled in a registered course and the Tribunal finds that the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

15. 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.’

    Applicant’s evidence.

16. The applicant is 32 years old citizen of China.

17. The applicant’s evidence was extremely vague and difficult to follow. He provided only one document in support of the application to the Tribunal and the Department. He also proved to be unable to remember specific details that one would expect him to be familiar with such as the date of his arrival in Australia and the details of his earlier study in Australia.

18. The applicant initially stated he had forgotten how long he had been in Australia. He conceded it was a few years. He later, with prompting form the Department file, stated that he had been in Australia since about October 2013.

19. He arrived in Australia to study Finance and Business in Sydney at the Business Institute. He did not enjoy this. He ceased studying Business courses.

20. He started his study in Sydney. He then moved to Adelaide before moving back to Sydney and then Warrnambool, in the State of Victoria.

21. He studied a Certificate IV in Fitness at Australian Institute of Fitness. This is not a registered CIRICOS course. He states he also studied a Certificate III in Fitness, but did not provide any evidence of that study.

22. He says that his Fitness study was part time study approximately 4 – 5hours per day, 3 days per week.

23. He says he has worked in the fitness industry as a personal trainer at Fitness First in Sydney. He has also worked in an “on line” training business. He says that his passion lies in the fitness industry and “helping people” by improving their health. However, he says he stopped working as a personal trainer.

24. He says he is now studying nutrition courses online. He did not provide any documentary evidence in relation to these courses.

25. He says that he has most recently been working in Warrnambool for a HR company.

26. He wishes to remain in Australia to study in the Fitness and Nutrition industries.

27. He is a Buddhist and he donates a portion of his wages to cancer charity.

28. If his visa is cancelled, he will suffer hardship as he would be unable to work or study. He does not wish to return to Hong Kong in the current instability.

    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

29. The term “compelling need” is not defined in the PAM3. I take it to have its ordinary meaning, having regard to both the context and purpose of the PAM3 and s 116 of the Act: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355  [1]There is nothing in s 116 or the PAM3 , or elsewhere in the Act, to indicate that Parliament intended the phrase “compelling need” to be given anything other than its ordinary and natural meaning.

    [1] per McHugh, Gummow, Kirby and Hayne JJ at [69].

30. The term compelling was the subject of detailed consideration by Crennan J (as her Honour was then) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs[2].  Her Honour set out the jurisprudence in relation to the words “compel” and “compelling” and the various dictionary meanings and stated, relevantly:

    “At [35] A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.

    [2] (2005) 143 FCR 204 [31] – [45]

31. Commenting further on the adjective “compelling” in the Regulations, at [37], Crennan J said:

    “The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’.”

32. “Need” was considered in Dimic v Djekovic (2014) NSWSC 1502, per Hallen J, at [111] as follows: "Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from " want ". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]:

    "'Need' is a more flexible word than it might first appear.' In need of' plainly means more than merely ' want ', but it falls far short of 'cannot survive without'."

33. ‘Need’ and ‘want ’ are not interchangeable. The difference between ‘need’ and ‘ want ’ is significant.[3]

    [3] See Boettcher v Driscoll (2014) SASC 86 at [41] per David J.

34. Having regard to these authorities, I take the phrase compelling need to have the ordinary meaning of the words, compelling, demanding attention or demanding interest or being forceful,  and need requiring something more than a mere want, but falling far short of requiring the applicant to demonstrate necessity in the sense that he cannot survive without it.

35. The Tribunal accepts that the applicant came to Australia with a purpose of studying. However, on the evidence it is clear that studying ceased to be the applicant’s purpose some time ago. Whilst the Tribunal notes he did study a Certificate IV in Fitness in 2017, this was not a CRICOS registered course and therefore was not an enrolment in a registered course of study as required under the terms of the applicant’s visa.

36. Similarly, the applicant’s evidence that he is currently studying online nutrition courses does not assist his application. This is not evidence that he is studying a registered course in accordance with the requirements of this visa.

37. Ministerial Direction 69 contemplates that a reasonable change in career path should be accommodated for students on a student visa and a change from Finance and Business to the Fitness related courses is not adverse to the application. However, failing to maintain enrolment in a registered is a breach of the terms of the applicant’s visa and weighs against granting the visa.

38. The applicant’s evidence in relation to his reasons for breaching the visa, and continuing the breach for an extended period of time was unpersuasive. It appears that he simply chose to study an unregistered course and has pursued work as a personal trainer since that time. It is not apparent that he took any steps to remedy the breach of the student visa, noting that he was in Australia, on a student visa and in breach of a considerable period of time. In these circumstances, the Tribunal does not consider the applicant has demonstrated a compelling need to travel or stay in Australia.

    The extent of compliance with visa conditions.

39. As stated above, the applicant was in breach of his student visa conditions for approximately 10 months. This is a substantial period of time and the non-compliance with condition 8202(2) for a substantial period of time weight towards the cancelling of the visa unless the Tribunal accepts his reasons for non-enrolment.

40. The difficulty for the applicant is that in his evidence, taken at its highest, he did not advance any real reasons to explain the breach. Rather, he attempted to justify the breach on the basis that he was pursuing a career in the health industry and he had, in 2017, engaged in some study that would assist him employment.

41. The applicant has resided in Australia for an extended period of time without complying with his visa requirements. It is apparent that he has failed to take any meaningful steps to recognise the breach and comply with the visa requirements. Whilst in breach of his visa, he appears to have worked in the fitness industry and the HR industry. He seems to have travelled Australia in search of employment noting that he has lived in Adelaide, Warrnambool and Sydney.

42. The extent of the applicant’s breach, and the lack of any real effort to remedy the situation weighs against the application.

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

43. The applicant says that he will suffer hardship if the visa is cancelled due to his being unable to work or study and he wished to study nutrition. It is not apparent why the applicant would be unable to undertake further online nutrition study in his home country. The Tribunal does not consider the matters raised by the applicant represent a significant hardship and the Tribunal places minimal weight in favour of the applicant.

    Past and present behaviour of the visa holder towards the department.

44. The applicant did not respond to the department’s NOICC. However, this is his right and the Tribunal does not consider failing to respond to the NOICC constitutes poor behaviour towards the Department. There is no evidence before the Tribunal in relation to the applicant’s interactions with the Department and the Tribunal makes no adverse findings against the applicant in this regard.

    Whether there would be any consequential cancellations under s 140

45. There is no evidence suggesting that if the applicant’s visa is cancelled, any other persons visa will be cancelled under s 140 of the Act.

    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 consequences, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

46. The Tribunal recognises that, if the visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. 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 finalise his affairs in Australia before departing.

47. If his visa is cancelled, the Tribunal also recognises that he will be subject to s 48 of the Act which means he will have limited options when applying for further visas, including the possibility that he may not be granted a temporary visa for 3 years from the date of the cancellation.

48. The applicant stated that he does not wish to return to Hong Kong, noting that he is concerned about the current instability in the region. However he did not provide any details of any specific concerns he may have.

49. The Tribunal weighs this factor marginally in favour of granting the visa, noting that the applicant’s concerns must be balanced against the intended consequences of the legislation.

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

50. The circumstances of the case are not such as to engage Australia’s international obligations.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.

51. This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.

    Any other relevant matters.

52. The applicant has not availed himself of the opportunity to provide reasons for his breach to the Department in order to contextualise the breach of the student visa. He provided very limited documentation to the Tribunal. Having regard to the evidence, this appears to be a case of the applicant having little regard to the visa requirements and embarked upon a path that was in clear breach of the visa conditions, without having any regard to the consequences of the breach.

53. The Tribunal considers the applicant’s breach is wilful and significant. In his evidence before the Tribunal he did not provide any real reason why he was unable to comply with the requirements of the visa. There is certainly no evidence that the applicant’s breach was due to reasons beyond his control.

54. The Tribunal has regard to the applicant’s evidence that he donates money to charity. This is admirable. However this fact alone does not ameliorate the applicant’s breach.

55. Considering the circumstances as a whole, and all the evidence before the Tribunal, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    D. Triaca
    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.