Sung (Migration)

[2020] AATA 3520

Sung (Migration) [2020] AATA 3520 (21 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Christian Sung

CASE NUMBER:  2001741

HOME AFFAIRS REFERENCE(S):          BCC2019/5230919

MEMBER:Peter Newton

DATE:21 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 21 July 2020 at 12:37pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of study ceased to exist – not a genuine student – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 28 January 2020 (Department’s Decision) made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (Act).

2.    The delegate cancelled the visa on the basis that in breach of condition 8202(2) (a) imposed on the applicant’s visa, the applicant had not been enrolled in a registered course of study since 24 September 2018.  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 8 July 2020 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

4.    The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of this matter.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone.

5.    The Tribunal is satisfied that the applicant heard and understood the outline given to him at the commencement of the hearing, as to how the hearing would proceed which included an outline of the issues to be considered in determining whether the visa should be cancelled if the Tribunal was satisfied that the applicant had not complied with condition 8202 attached to his visa. The Tribunal is satisfied that the applicant heard and understood the questions asked during the hearing which he answered.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6.    During the hearing, the applicant accepted that since making the application for review, the only document he had provided to the Tribunal was the Response to hearing invitation – MR Division dated 5 June 2020 signed by the applicant.

7.    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

8.    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 (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?

9.    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 full time registered course: 8202(2)(a)

·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2) (c) (ii).

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

2. During the hearing the applicant accepted that he had read the Department’s Decision and that he has not been enrolled in a registered course of study since 24 September 2018. The applicant provided to the Tribunal a copy of the Department’s Decision for the purposes of this review, which stated that the applicant has not been enrolled in a registered course of study since 24 September 2018.

3. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, I find that the applicant has not complied with condition 8202(2) (a).

Consideration of the discretion to cancel the visa

1. 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 Procedural Instruction ‘General visa cancellation powers’.

• 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

1. The Department’s Decision records and there is no dispute that the applicant arrived in Australia on 24 October 2014 as the holder of a Student (subclass 572) visa, for the purposes of completing an Advanced Diploma of Business, a Diploma of Business and Certificate IV, III and II in Business.  The Department’s Decision also records that the applicant was granted a Student (subclass 500) visa on 1 November 2017 for the purpose of studying an Advanced Diploma of Accounting, A Diploma of Accounting and a Certificate IV in Accounting in Australia.

2. During the hearing, the applicant said he commenced studying an accounting course at Australian Institute of Information and Technology on 1 November 2017.  He said that he found the course too difficult and ceased studying the accounting course in September 2018.  The applicant said he has not resumed studying since September 2018.  As stated, the applicant accepts he has not been enrolled in a registered course of study since 24 September 2018.

3. There can be no dispute that the purpose of the applicant’s travel and stay in Australia is for the purpose of study.  The evidence establishes that the applicant has not studied in Australia since September 2018.

4. The applicant said that he had obtained an offer letter from Bridge Business College (BCC) dated 25 November 2019.  He indicated he provided the offer letter to the Department of Home Affairs in response to the Notice of Intention to Consider Cancellation.  The Department’s file contained the offer letter from BCC to the applicant dated 24 November 2019.  The offer letter states:

1. During the hearing the applicant said he paid the AUD$1,600 and received acknowledgment of payment and an email from BCC inviting him to register for an orientation course.   The applicant says that he attended an orientation course at BCC on 16 January 2020.  He said that he was unable to obtain a Confirmation of Enrolment from BCC because his agent verbally told him that he had been rejected by BCC because “I was reported to Home Affairs.” 

2. During the hearing I asked the applicant if there is any compelling need for him to remain in Australia.  The applicant said he wants to continue his studies.  He said he wants to study business studies. 

3. The Department’s file contains a record from the Provider Registration and International Student Management System (PRISMS) which records the following:

1. During the hearing I informed the applicant of the PRISMS record contained in the Department’s file.  In accordance with s 359AA of the Act, I advised the applicant that I was going to put particulars of the information in the PRISMS record that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review.  I advised the applicant that the information is relevant to the review because, depending on his comments or response, it may provide   grounds for finding that the applicant has no compelling need to remain in Australia.  I advised the applicant that after I explained the information, the applicant would be invited to comment or respond.  I advised the applicant that he may ask for additional time to comment or respond if he considers he needed to.  I advised the applicant that if he requires additional time to respond to the information, the Tribunal will consider his request and may adjourn the hearing.

2. During the hearing I gave the applicant particulars of each course (except the course numbers), course duration, whether the course was recorded as having been finished or cancelled and details of the variation reasons contained in the PRISMS record.  I was satisfied that the applicant understood why the information is relevant to the review and the consequences of the information being relied on in affirming the decision that is under review.  After I put to the applicant particulars of each course (except the course numbers), course duration, whether the course was recorded as having been finished or cancelled and details of the variation reasons, I asked the applicant if he accepted or wished to comment on any of the information I put to him. The applicant either accepted or declined to comment on the information I put to him from the PRISMS record.  The applicant did not dispute any of the course details recorded in the PRISMS record that I put to him.  The applicant did not request additional time to respond to the information.

3. The applicant accepted that he had completed the Certificate II in Business course and the Certificate III in Business course.  The applicant accepted he was enrolled in but did not complete a Certificate IV in Business course.  The applicant accepted he was enrolled in the Diploma of Business Course and Advanced Diploma of Business Course.  The applicant accepted that he completed a Certificate IV in Leadership and Management course. I understood from the applicant’s evidence that he commenced studying the Certificate IV in Accounting course but did not complete that course because he found it too difficult.

4. As stated, during the hearing I asked the applicant if there is any compelling need for him to remain in Australia.  The applicant said there was because he wants to continue his studies.  He said he wants to study business studies. 

5. The applicant has not established a compelling need to remain in Australia for the purpose of continuing to study business studies because firstly, the applicant was enrolled in Certificates II, III, IV in Business, Diploma of Business and Advanced Diploma of Business courses; secondly, the applicant only completed the Certificates II and III in Business courses; thirdly, he did not complete the Certificate IV in Business course or commence studying the Diploma of Business and Advanced Diploma of Business courses; fourthly, the applicant did not complete the Certificate IV in Accounting course because he seed he found it too difficult; and fifthly having regard to the applicant’s history of not completing and not commencing courses of study the applicant has enrolled in, the Tribunal is not satisfied that if the decision under review is affirmed, the applicant will commence or complete any further studies in Australia.

6. The evidence establishes that on 25 November 2019 the applicant obtained an offer from BCC for the three courses of study referred to in the letter of offer from BCC and he was unable to obtain a Confirmation of Enrolment from BCC.  However, as the applicant has failed to complete and/or commence three of the five business courses he was enrolled in, did not complete the Certificate IV in Accounting course he was enrolled in, has not studied since September 2018, failed to maintain enrolment in a registered course of study since 24 September 2018, did not obtain an offer of enrolment in a registered course of study until 25 November 2019 and as the Tribunal is not satisfied that if the decision under review is affirmed, the applicant will commence or complete any further studies in Australia, I find that the purpose of the applicant’s stay in Australia is no longer aligned with the purpose of study as required by his Student visa.  I give this consideration weight in favour of cancelling the visa.

• The  extent of compliance with visa conditions

1. Condition 8202 is a mandatory condition applied to student visas which obliges visa holders to remain enrolled in a course of study and, depending on the course, either meet attendance requirements or meet academic progress requirements.

2. Student visas are granted for the purpose of studying towards, and achieving, an educational qualification in Australia.  The student visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted a student visa, the visa holder’s primary intention must be to study, maintain enrolment, attendance and course progress, in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course.

3. The applicant accepts he has not been enrolled in a registered course of study since 24 September 2018.  Notwithstanding the applicant obtained the offer for enrolment in three courses of study from BCC on 25 November 2019, as the applicant has failed to maintain enrolment in a registered course of study, he is in breach of condition 8202(2) (a).  I give this consideration weight in favour of cancelling the visa.

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

1. There is no evidence of any hardship that may be caused by the cancellation of the applicant’s visa.  Notwithstanding this, I accept that some degree of hardship may be caused if the Department’s Decision is affirmed.  I give this consideration some weight in favour of not cancelling the visa.

Circumstances in which ground of cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control  

1. During the hearing, the applicant said that he completed the Certificate IV in Leadership and Management course on 23 June 2017.  He said that after he completed this course, he commenced studying an accountancy course at Australia Institute of International Technology on 1 November 2017.  He said he did not complete this course because it was too difficult.  He said he ceased studying this course in September 2018.  It appears the applicant did not take any step to be enrolled in a registered course of study until on or about the time he obtained the offer letter from BCC dated 25 November 2019.  The applicant says he was unable to obtain a Confirmation of Enrolment from BCC and accepts that he has not been enrolled in a registered course of study since 24 September 2018.

2. During the hearing, the applicant said he came to Australia to do business studies.  The applicant said he originally enrolled in the accounting course(s) so he could stay in Australia for a longer period that he would be able to stay in Australia if he was enrolled in a business course.  The applicant said he spoke to his agent about how he could stay in Australia longer to complete his business studies.  The applicant said his agent told him the only way to stay for longer was to enrol in accounting.  The applicant said if he “got that I could move over and do business”.  The applicant said he found accounting very difficult.  He said he asked his agent to “quickly move me across to business” but he said his agent refused.  I asked the applicant why he enrolled in the accounting course when he wanted to do a business course.  The applicant said he wanted to study longer in Australia.

3. The evidence establishes that the applicant was enrolled in a package of five business courses but only completed two.  After completing the two business courses, the applicant undertook and completed the Advanced Diploma of Leadership and Management course.  The applicant then commenced studying the accounting course.  The applicant’s evidence establishes that he only enrolled in the accounting course(s) because he wanted to stay in Australia for a longer period of time.  I understood this to mean, a longer period than was or would be required to complete a business course or courses.  I do not consider this to reflect the intentions of a genuine student.  The evidence establishes that the applicant never had any genuine intention of studying accounting and found the accounting course too difficult to complete and ceased studying in September 2018.

4. Having regard to all of the evidence, I find that the circumstances in which the ground of cancellation arose was because the applicant enrolled in accounting for the purpose of extending his stay in Australia and not for the genuine purpose of studying accounting. The applicant found accounting difficult and therefore ceased studying.  As a consequence, his enrolment was cancelled and he has not been enrolled in a registered course of study since 24 September 2018.  I give this consideration weight in favour of cancelling the visa.

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

1. There is no information to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department.  There is no evidence the applicant has been unco-operative with the Department of Home Affairs.  On the evaluative exercise I am required to undertake, I regard this consideration as neutral. 

• Whether there would be consequential cancellations under s.140

1. There are no dependant visa holders.  Accordingly this factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

• 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

1. If the Tribunal affirms the decision to cancel the applicant’s visa, the applicant will be an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart from Australia. Additionally, the applicant will be subject to section 48 of the Act which means that he will have limited options to apply for further visas in Australia. He will also be subject to Public Interest Criterion 4013, which may prevent the applicant from being granted particular temporary visas for a specific period.

2. The Tribunal accepts that there will be mandatory legal consequences to the applicant if it affirms the decision to cancel the applicant’s visa.  However, these consequences are the intended consequences of a visa holder’s failure to comply with the terms of a visa.  Accordingly, on the evaluative exercise I am required to undertake, I regard this consideration as neutral.

• 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

1. There is no evidence indicating that the circumstances of this case are such that would engage Australia’s International obligations and the cancellation if the visa would lead to a breach of Australia’s international obligations.  Accordingly, on the evaluative exercise I am required to undertake, I regard this consideration as neutral.

• If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. This factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

• Any other relevant matters.

1. I am not aware of any other relevant matters in relation to the Tribunal’s consideration of whether the visa should be cancelled.  

Conclusion

1. Considering the circumstances as a whole, the factors I have assessed in favour of cancelling the visa outweigh the factor I have assessed against cancelling the visa and the Tribunal concludes that the visa should be cancelled.

DECISION

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

Peter Newton
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (1)      The holder must be enrolled in a full time course of study or training if the holder is:

   (a)a Defence student; or

   (b)     a Foreign Affairs student; or

   (c)      a secondary exchange student.

   (2) A holder not covered by subclause (1):

   (a)      must be enrolled in a full time registered course; and

   (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

   (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

   (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.