Tan (Migration)

[2019] AATA 3458

Tan (Migration) [2019] AATA 3458 (5 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Edison Zhi Yuan Tan

CASE NUMBER:  1821199

HOME AFFAIRS REFERENCE(S):          BCC2018/353252

MEMBER:Margie Bourke

DATE:5 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 05 August 2019 at 10:07am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – chose not to re-enrol in course – dispute with agent and education provider – 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 17 July 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 been enrolled in a registered course of study since 26 July 2017, and the delegate was not satisfied that the reasons for cancelling the visa were outweighed by the reasons for not cancelling the visa. 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 22 July 2019 to give evidence and present arguments. The applicant was not represented at the hearing, although he stated he had sought advice from an agent. After the hearing the Tribunal gave the applicant time to provide documentary evidence in relation to matters the applicant had given evidence about during the hearing.

4. 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

5. 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?

6. 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).

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

8. Based on the applicant’s evidence the tribunal is satisfied that he was enrolled in a registered course of study from July 2016 to July 2017. The applicant stated that initially he was enrolled in Certificate IV business, but that he struggled with this course and was advised he would not completed successfully because of his poor English skills. At the end of 2016 the applicant enrolled the same college in an English course which he completed in July 2017. The applicant stated that he did not enrol in a registered course of study from 26 July 2017. This is consistent with the information in the Department’s decision record dated 17 July 2018.

9. I am satisfied that the applicant was not enrolled in a registered course of study from July 2017. I am satisfied that the applicant’s enrolment ceased from 26 July 2017.  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).

10. I am satisfied that the Department notified the applicant by way of a registered post to his last and only known residential address, and by email to the applicant’s two known email addresses. The applicant responded to the Department notification by email. The applicant stated in the hearing that he received the Department correspondence and notification that was sent to his email address. I am satisfied that the applicant received all appropriate notifications and decisions from the Department in relation to the cancellation of his visa.

    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’.

12. At the conclusion of the hearing, and prior to my consideration of and conclusions in relation to the discretion to cancel the visa, I discussed with the applicant whether he wished to provide further written evidence in relation to his claims given in his oral evidence at the hearing, and granted him the opportunity to provide evidence after the hearing. I allowed the applicant one week to provide information.  I discussed the tribunal would be assisted by receiving documents including his academic record or achievement record or attendance record in relation to the Certificate IV business course and English course the applicant undertook in 2016 and the first half of 2017; receipts from the college confirming payment for the Certificate IV business course and the English course, and if possible a letter from the college confirming they had refused his request for a letter releasing him from the college, and confirmation that the applicant’s cousin had booked her wedding for April 2020, and any other information the applicant wished to provide.

13. The applicant provided a response in writing at the conclusion of the week after the hearing. He advised his cousin’s wedding was not booked at this time, as they had not yet confirmed a venue. He advised he had no record from the college confirming he made a request for release from the college which was refused because he walked in to make the request. The only record the applicant provided from Dalton College was a receipt dated 29 May 2016.  It does not record the course, the student’s name, or previous courses completed or future courses planned.  It records payment of $1000 with $3320 outstanding.  There is no record of academic achievement or attendance in relation to the courses the applicant undertook in 2016 and 2017. 

14. The applicant provided one other receipt from another college (St Peter’s) in the amount of $625 dated 16 September 2018, recorded as transferred to CBA, and a bank receipt recording on 31 August 2018 $625 was deposited in cash in the branch to a third party account.  These two receipts do not record the applicant’s name, or name a course, and have different dates on them.  I cannot give these receipts weight as evidence of payment by the applicant for further study because there is no means of identification of the receipts. The applicant gave evidence that he had obtained a CoE at another college, St Peter’s, after the Department’s decision record which is dated 17 July 2018. The applicant stated that he obtained this enrolment through an agent, which would explain why he provided two receipts with different dates, (one to his agent, who then pays the course provider). I accept the applicant enrolled in a course of study after he was notified his visa was cancelled.

15. Purpose of applicant’s travel and stay in Australia: the applicant stated that he came to Australia on a tourist visa and applied for a student visa onshore. The applicant stated that the purpose of his study was firstly to achieve a academic qualification in dentistry but this was too difficult with his limited English capabilities. The applicant stated that the second purpose of his study was to achieve a certificate in English and a certificate in business management, so he could return to Malaysia and work for his brother in his telecommunication business. The applicant stated he had a compelling need to remain in Australia to complete a certificate in business management so he could work for his brother. The applicant stated he needed proof by way of a certificate that he was capable and had the education to work in his brother’s business. The applicant stated that his initial intention of undertaking an academic qualification in dentistry was not an achievable goal.

16. The applicant had stated that he completed his English course, and if this is correct he should have a certificate of completion or graduation. The applicant did not complete his Certificate IV in business because of the complex range of factors, which included that he chose not to enrol in July 2017. I have considered that the applicant was given the opportunity, but has not provided any record of attendance or academic achievement or academic completion.  The tribunal recognises some colleges do not provide records willingly if there is an ongoing financial issue, and the applicant provided one receipt of part-payment for an undisclosed course.  However the applicant’s evidence is that he completed the English course and was offered the opportunity to continue study at the college but it was his choice not to pay further enrolment fees at that college. I have considered that the applicant chose not to re enrol in a registered course of study. I accept that the applicant was angry, and had suffered some financial loss through the actions of his agent. However if the reasons to continue study were compelling, the applicant could have chosen to continue to do so in July 2017, and therefore fulfil the reason for remaining in Australia.

17. I have considered the applicant stated that the college refused to provide him with a release; however I also note the applicant did not provide any record of the refusal to release him, and that the applicant enrolled in another course at another college after receiving notification of the cancellation of his visa. I have considered that the applicant enrolled in a course of study after he received the notification of the Department’s decision that his visa had been cancelled.  Based on the evidence before me, I am not satisfied that the college refused to release the applicant.  After assessing the evidence of the purpose of the applicant’s travel and stay in Australia, I give this consideration, and the applicant’s choices not to enrol, weight in favour of cancellation of the visa.

18. Extent of compliance with visa conditions: the applicant did not re enrol in a registered course of study after 26 July 2017. The applicant stated he had engaged an agent, “Jack” or “Jackie” in 2016 after he arrived in Australia to apply for his student visa. The applicant stated he paid his agent over $20,000 for his services, which included his course fees for the Certificate IV business course and the English course. The applicant stated that he assumed these fees included his ongoing Certificate IV business course fees in 2017. The applicant stated he had been advised at the end of 2016 by the college that his English was not sufficient for him to pass the business course at that time or to continue in the course and it was recommended that he undertake the English course. The applicant stated that he was angry after he had completed the English course, that he was then expected to pay further course fees to enrol in the Certificate IV course. The applicant stated he had some discussions with his agent and the receptionist at the college, and his business course teacher Kevin at the college, but he got no satisfaction. He stated he was too angry to pay further enrolment fees to enrol again in the Certificate IV business course. The applicant also stated he did not wish to continue on at the same college because he was angry at how he had been treated.

19. The applicant did not enrol in another course of study until after he received the Department’s decision record dated 17 July 2018, notifying him that his visa had been cancelled. Apart from not enrolling in a registered course of study from 26 July 2017 until after the cancellation of his visa, there is no other evidence before me that the applicant has not complied with other conditions of the student visa. I have considered the evidence in relation to the non-compliance with the visa conditions, and overall I give this evidence weight in favour of cancellation of the visa.

20. Degree of hardship: the applicant stated that he would incur financial hardship if the visa was cancelled and he was unable to complete his studies, because his brother would be angry that he returned to Malaysia without completing his studies, and without a certificate which would enable him to work for his brother. The applicant’s brother had contributed some funds to the applicant’s study and agent costs.  The applicant stated that if he had to return to Malaysia he understood that he would be unable to return to Australia and therefore could not attend his cousin’s wedding in Australia in April 2020. The applicant advised after the hearing that the wedding was not yet booked.  The applicant also stated that he had been in a relationship with his partner for 2 ½ years, and he would suffer hardship as a result of being separated from his partner. The applicant stated that his partner was applying for permanent residency in Australia. I give the evidence in relation to degrees of hardship the applicant claims he will incur weight in favour of not cancelling the visa.

21. Circumstances in which the ground of cancellation arose: the applicant stated that the circumstances in which the ground of cancellation arose involved substantial study fees, and agent fees, and fraudulent behaviour by his agent. The applicant stated that he was advised by friend that his agent had been arrested by police in a shop in Elizabeth Street, and he assumed had been charged for fraud type matters at the time he did not re-enrol in July 2017. Enquiries involving an immediate Internet search by tribunal staff did not disclose any record of a registered migration agent being sanctioned for immigration fraud or criminal matters, or any article of an immigration agent being arrested by police in Melbourne in 2017. I discussed this with the applicant in the hearing, but do not conclude that the applicant’s evidence was not credible in relation to the money taken from him by his first agent. This only indicates that there is no documentary evidence available to confirm the applicant’s oral evidence.  The applicant’s agent may not have been a registered migration agent, and may have been an education agent, or an unregistered agent. The tribunal accepts that the applicant found himself in a situation where he had paid substantial fees to study, and his agent had defrauded him or absconded with some of his funds. The tribunal accepts the applicant’s evidence that he felt angry that he had been defrauded and he was again requested to pay further enrolment fees to continue his study at the College. The tribunal accepts that the applicant also felt angry as he had understood he had paid for the Certificate IV business course in its entirety, and had completed an additional English course on the advice of the college. The tribunal has considered that the applicant’s response to these circumstances was to take no action and not enrol or continue his study. The tribunal accepts that the applicant felt victimised as he had been defrauded by his agent, followed the advice of the college and ultimately had lost a substantial amount of money. For these reasons the tribunal gives the circumstances in which the ground of cancellation arose weight in the favour of not cancelling the visa.

22. Past and present behaviour of the applicant towards the Department: there is no evidence that the applicant has been uncooperative in his relationship with the Department. However I note that the applicant has not responded to correspondence from the Department, or provided information to the Department in relation to his situation. I give the applicant’s behaviour towards the Department a little weight in favour of not cancelling the visa.

23. Consequential cancellations under s.140: there is no evidence that there would be any consequential cancellations pursuant to s.140 if the applicant’s visa was cancelled and I give this consideration no weight.

24. Mandatory legal consequences: there would be mandatory legal consequences for the applicant that are engaged upon the cancellation of the visa including the engagement of PIC 4013, the application of s.48 restrictions on potential visa applications, potential limitations in relation to further offshore visa applications to Australia, and the potential possibility of detention prior to the applicant returning to his country of citizenship. I give these factors weight in the favour of not cancelling the visa.

25. International obligations: there is no evidence that the cancellation of the applicant’s visa would breach or affect any of Australia’s international obligations. There is no evidence that the cancellation of the applicant’s visa would lead to a breach of Australia’s non-refoulement obligations.  I give these considerations no weight.

26. I have considered the matters before me and overall I am not satisfied that the circumstances as a whole amount to reasons for exercising the discretion to set aside the cancellation of the visa. I consider the grounds for cancelling the visa outweigh the grounds for not cancelling the visa. After carefully considering all the matters before me I am satisfied that the factors in the applicant’s favour, for not cancelling the visa, do not outweigh the factors in favour of cancelling the visa.

27. Considering the circumstances as a whole, the tribunal concludes that the visa should be cancelled.

    DECISION

28. The tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Margie Bourke
    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.