Sujin (Migration)

[2020] AATA 480

Sujin (Migration) [2020] AATA 480 (30 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kim Sujin

CASE NUMBER:  1810311

HOME AFFAIRS REFERENCE(S):          BCC2018/151225

MEMBER:Linda Symons

DATE:30 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 30 January 2020 at 4:38pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – not enrolled in registered course – multiple courses cancelled – purportedly unable to study due to illness – claimed remained enrolled – claimed mental health issues – did not seek help from education provider – did not inform department of issues – inconsistent information – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
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 9 April 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 was not enrolled in a registered course since 30 May 2017. On 12 April 2018, she applied to the Tribunal for a review of that decision.

3. On 18 October 2018, the Tribunal wrote to the applicant and informed her that it had considered the material before it and was unable to make a favourable decision on that information alone. The Tribunal invited her to appear before it on 5 December 2019 to give evidence and present arguments relating to the issues arising in her case. The Tribunal informed her that if she did not attend the hearing it could make a decision on the review without taking any further action to allow or enable her to appear before it or may dismiss her application for review without any further consideration of the application or information before it.

4. The applicant did not attend the hearing on 5 December 2019. The Tribunal dismissed her application for review. On 10 December 2019, the Tribunal notified her of the dismissal of her application for review and informed her of her right to seek reinstatement of the application for review by 24 December 2019. On 19 December 2019, she sought a reinstatement of her application for review on the basis that she did not receive the hearing invitation. The Tribunal reinstated her application for review and on 7 January 2020 invited her to attend another hearing before the Tribunal on 30 January 2020.

5. The applicant appeared before the Tribunal on 30 January 2020 to give evidence and present arguments.

6. 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 AND FINDINGS

7. 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?

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 was granted a subclass 572 Student visa on 5 January 2016. This visa was subject to a number of conditions including condition 8202. On 12 March 2018, the delegate sent her a Notice of Intention to Consider Cancellation (NOITCC) of her Student visa. She was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why her Student visa should not be cancelled. She requested and was granted an extension of time until 26 March 2018 to provide a response to the NOITCC.

10. On 27 March 2018, an unauthorised third party purporting to act on the applicant’s behalf wrote to the Department of Immigration (the Department) and claimed that she was studying past the date stated in the NOITCC. He stated that a “doctor’s assessment as to why she was failing and unable to attend” was enclosed. He stated that “she is now back to full time studies and enrolled”. The Department was provided with an Initial Assessment dated 21 March 2018 from a Consultant Clinical Psychologist, two Confirmation of Enrolment (COE) forms for the period 9 April 2018 to 5 April 2019 and 8 April 2019 to 3 April 2020 and a notice of an orientation day on 6 April 2019 issued by Mercury Colleges. The delegate cancelled the applicant’s Student visa on 9 April 2018.

11. The applicant provided to the Tribunal a copy of the Department’s Decision Record dated 9 April 2018. At the hearing, she provided the Tribunal with a COE for a Diploma of Hospitality Management for the period 15 August 2016 to 10 August 2018, a Record of Results from the Sydney Business and Travel Academy (SBTA), Invoices dated 31 October 2017 and 19 March 2018 issued by Poly Education, a receipt from the Commonwealth Bank for the transfer of $901.15 to SBTA on 31 October 2017 and a Commission Request dated 12 May 2017 to SBTA.

12. During the hearing, the applicant stated that she disagrees with the Department’s decision. She stated that she was enrolled in a registered course in 2018. She provided the Tribunal with the COE for a Diploma of Hospitality Management for the period 15 August 2016 to 10 August 2018. She stated that she paid her fees until 2018. She stated that she stopped studying in February 2018 and did not complete the course. When asked why she stopped studying in February 2018, she responded that it was because her Student visa was cancelled.

13. When the Tribunal pointed out to the applicant that her Student visa was not cancelled until April 2018, she responded that her education provider was on holidays. When asked whether her education provider was on holidays until April 2018, she responded no. She stated that they were on holidays until March 2018 and she received a letter from the Department in March 2018.

14. The applicant gave evidence that she was always enrolled in a registered course. She stated that she has always complied with condition 8202 of her Student visa in relation to being enrolled in a registered course. She provided the Tribunal with a Commission Request dated 12 May 2017 and an Invoice dated 31 October 2017 (in relation to the applicant and two other students) presumably from her education agent to SBTA. The Tribunal does not accept that this is evidence that she was always enrolled in a registered course. She also provided the Tribunal with a Commonwealth Bank receipt for the transfer of the sum of $901.15 from her to SBTA and an Invoice dated 19 March 2018 from Poly Education (presumably her education agent) to SBTA requesting a refund of tuition fees for the Terms commencing 4 August 2017 and 31 October 2017. The Tribunal does not accept that this is evidence that she was always enrolled in a registered course.      

15. The records of the Department indicate that the applicant was granted a Student visa on 5 January 2016 and that this Student visa was subject to a number of conditions including condition 8202. The records of the Department of Education indicate that she enrolled in a Diploma of Hospitality Management from 15 August 2016 to 10 August 2018. Her enrolment in that course was cancelled on 30 May 2017 for unsatisfactory course progress. The Department issued her with a NOITCC on 12 March 2018. She then enrolled in a Diploma of Leadership and Management from 9 April 2018 to 5 April 2019 and an Advanced Diploma of Leadership and Management from 8 April 2019 to 3 April 2020. Her enrolment in both these courses was cancelled on 12 October 2018 for non-payment of fees and non- commencement of studies respectively.

16. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that she was not studying the Diploma of Hospitality Management until February 2018 as claimed and that she was not enrolled in a registered course between 30 May 2017 and 8 April 2018 and therefore breached condition 8202(2) of her Student visa. She declined to respond.

17. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course between 30 May 2017 and 8 April 2018 and accordingly has not complied with condition 8202(2)(a) of her Student visa.

    Consideration of the discretion to cancel the visa

18. 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’.

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

19. The applicant gave evidence that the purpose of her stay in Australia was to get a Certificate and a Diploma. Her evidence to the Tribunal is that she completed a Certificate of Business in 2013 and a Diploma of Business in 2015. When the Tribunal pointed out that she had already obtained a Certificate and Diploma, she responded that she wanted a Certificate in Hospitality.

20. The records of the Department of Education indicate that the applicant completed a two and a half months course and a three month’s course in General English in 2016. The last substantive course she completed was a Diploma of Management on 26 September 2014. The Tribunal put this information to her, pursuant to s.359AA of the Act, and noted that it may find that she has not fulfilled the purpose for which the Student visa was granted to her and that her Student visa should be cancelled. She declined to respond.

21. The Tribunal asked the applicant why she did not return to her family in South Korea if she was on a Student visa in Australia and was not studying. She responded that she could not tell her parents and did not want them to worry about her. 

22. The applicant is not currently enrolled in a registered course and has not been for a considerable period of time. The Tribunal is of the view that she has not demonstrated a compelling need to remain in Australia. When the Tribunal raised this as an issue with her, she declined to respond.

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

    The extent of compliance with visa conditions

24. The applicant was not enrolled in a registered course between 30 May 2017 and 8 April 2018. This is a substantial period of time during which she was in breach of condition 8202(2)(a) of her Student visa.

25. After the applicant was issued with a NOITCC on 12 March 2018, she enrolled in a Diploma of Leadership and Management from 9 April 2018 to 5 April 2019 and an Advanced Diploma of Leadership and Management from 8 April 2019 to 3 April 2020 but did not complete these courses. The Tribunal is not convinced that she has provided a satisfactory explanation for why she was not enrolled in a registered course between 30 May 2017 and 8 April 2018. (see paragraphs 30 to 37 below).

26. The applicant has provided to the Tribunal a copy of her COE for the Diploma of Hospitality Management in which she was enrolled from 15 August 2016 to 10 August 2018 and her Record of Results for this course. The Record of Results indicate that was enrolled in twelve subjects in 2016 and 2017 and she was ‘Not Yet Competent’ in any of these subjects. Her enrolment in this course was cancelled on 30 May 2017 for unsatisfactory course progress. (see paragraphs 15 and 16 above). This tends to indicate that she also did not comply with condition 8202(3)(a) of her Student visa.

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

    Degree of hardship that may be caused

28. The Tribunal asked the applicant what hardship, if any, would be caused to her if her Student visa is cancelled. She responded “no hardship”.

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

    Circumstances in which the ground for cancellation arose

30. The Department was provided with an Initial Assessment dated 21 March 2018 from Dr Anthony J Pignataro, Consultant Clinical Psychologist. It indicates that Dr Pignataro saw the applicant on 21 March 2018 “for an initial assessment of her mental state following the recent notification that her Student visa was going to be cancelled”. He stated that “she appeared anxious and preoccupied and unsure of her current position as a Student in Australia”. He stated that “she reported that she was informed by her education agent in South Korea of the requirements of her study conditions but had not understood the consequences of failing to attend college and of not notifying the Department of her reasons for failing to attend college”.

31. Dr Pignataro stated that the applicant’s score on the Kessler Symptom Scale, which is a self-report measure of psychological distress, “was in the moderate range suggesting a mental health disorder was likely”.    

32. This report was prepared after the applicant was issued with the NOITCC and for the purpose of providing evidence to the Department as to why her Student visa should not be cancelled. The diagnosis relied on her scores on the Kessler Symptom Scale, which is a self-report measure of psychological distress. These factors impact on the weight the Tribunal can place on this report. The Tribunal accepts that she appeared anxious, preoccupied and unsure of her current position as a Student in Australia when seen by Dr Pignataro on 21 March 2018.   

33. During the hearing, the applicant initially gave evidence that she did not agree that her enrolment in the Diploma of Hospitality Management was cancelled (on 30 May 2017) for unsatisfactory course progress. She stated that she passed three subjects but could not get proof of that (from SBTA). However, she did provide the Tribunal with a copy of her Record of Results from SBTA for the Diploma of Hospitality Management. It indicates that she enrolled in twelve subjects in 2016 and 2017 and was ‘Not Yet Competent’ in any of them. This is not consistent with her evidence that she passed three subjects. When the Tribunal pointed this out to her, she responded that she was sick and could not attend classes for 9 months.

34. The Tribunal reminded the applicant of her earlier evidence that she was attending classes at SBTA. She responded that she only attended classes on one day a week. The Tribunal asked her what was wrong with her health during that period and she responded that she had a “mental problem”. When asked whether she informed her education provider of the problems she was having and seek their assistance, she responded no. When asked whether she saw a student counsellor at SBTA, she responded no. When asked whether she spoke to a counsellor or psychologist outside of SBTA, she responded no. When asked whether she spoke to someone at the Department about the problems she was having, she responded no.

35. The report from Dr Pignataro makes no mention of the applicant suffering from mental health problems in 2016 or 2017 that resulted in her not being able to attend classes for 9 months or, alternatively, only being able to attend classes one day a week. The Tribunal would expect that, if this was the case, she would have mentioned it to Dr Pignataro particularly as the report was being sought to put evidence before the Department as to why her Student visa should not be cancelled.

36. The Tribunal finds it implausible that the applicant was well enough to work two to three days a week during the relevant period but was unable to attend classes or, alternatively, only attended classes one day a week. The Tribunal raised these issues and its concerns in relation to her credibility with her and noted that it may not accept that her mental health was the reason for her unsatisfactory course progress in the Diploma of Hospitality Management She declined to respond.

37. The Tribunal is not satisfied that the applicant has provided an honest account of the circumstances in which the ground for cancellation arose. The Tribunal does not give this consideration any weight in her favour.   

    Past and present behaviour of the applicant towards the Department

38. The applicant gave evidence that she has held one subclass 417 Working Holiday visa that was granted in April 2017. When asked where she lived whilst the holder of a subclass 417 Working Holiday visa, she stated that she lived in Sydney with her boyfriend who supported her. When asked whether she undertook any work whilst the holder of a subclass 417 Working Holiday visa, she responded that she worked as a florist at the GPO in Martin Place, Sydney for 3 months and worked 18 hours a week. When asked if she undertook any other work, she responded no.

39. The records of the Department indicate that the applicant was granted a subclass 417 Working Holiday visa on 5 October 2010 and that visa was valid until 4 April 2012. She was issued with a second subclass 417 Working Holiday visa on 4 April 2012 and that visa was valid until 12 April 2013. The Tribunal put this information to her, pursuant to s.359AA of the Act, and noted that it may find that she had not complied with conditions attached to both these visas as she was living in Sydney whilst the holder of these subclass 417 Working Holiday visas and the only work she did during that time was to work as a florist for 3 months at the GPO in Martin Place, Sydney. 

40. The Tribunal also noted that the applicant would have had to provide information and documentary evidence of having worked in rural Australia when applying for the second subclass 417 Working Holiday visa and this raised concerns that she may have provided false information and bogus documents to the Department to obtain the second subclass 417 Working Holiday visa. She declined to respond. These issues raise concerns about her past behaviour towards the Department

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

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

42. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in her favour.

    Legal consequences of a decision to cancel the visa

43. If the applicant’s Student visa is cancelled, she 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 she does not voluntarily depart Australia or resolve her immigration status. However, she may be eligible for a Bridging visa that would allow her lawful presence in Australia for a short period of time so that she can finalize her affairs in Australia before departing.

44. If the applicant’s Student visa is cancelled, she will be subject to s.48 of the Act which means that she will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 may prevent her from being granted particular temporary visas for a period of three years from the date of cancellation. These are the intended legal consequences of a decision to cancel a visa. The Tribunal does not give this consideration any weight in her favour.   

    Australia’s international obligations

1. The Tribunal asked the applicant whether there was any reason why she could not return to South Korea and she responded no.

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

   Any other relevant matter

3. The applicant was previously granted a subclass 572 Student visa on 24 April 2013 that was valid until 10 June 2015. During that period, she completed a Certificate IV in Business Management and a Diploma of Management. The Tribunal finds that she fulfilled the purpose for which that Student visa was granted to her in 2013.

4. The Tribunal gives this consideration some weight in the applicant’s favour.   

   CONCLUSION

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

   DECISION

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

   L. Symons
   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.