TSANG (Migration)

TSANG (Migration) [2019] AATA 861 (4 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr CHUN PING TSANG
CASE NUMBER:  1701288
HOME AFFAIRS REFERENCE(S):           BCC2016/4333234
MEMBER:Wendy Banfield
DATE:4 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 04 February 2019 at 10:05pm

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 – circumstances giving rise to ground for cancellation – issues with education provider – father’s illness and subsequent death – length of non-enrolment – 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

This is an application for review of a decision dated 20 January 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).
The delegate cancelled the visa on the basis that the visa applicant was not enrolled to study from 4 March 2016 until the visa was cancelled on 20 January 2017 in breach of condition 8202(2)(a) attached to the student 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.
Background
The applicant is a citizen of Hong Kong and is currently 27 years old. He came to Australia as a visitor and in 2015, applied for a student visa. The applicant intended to stay in Australia to undertake further education and had been enrolled in a Diploma and Advanced Diploma of Management.
The applicant appeared before the Tribunal on 23 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by his registered migration agent.
Evidence of the visa applicant
The applicant submitted documents to the Tribunal that included a boarding pass for travel to Hong Kong, a graduation certificate dated June 2009 from a school in Hong Kong (including translation), medical evidence regarding the applicant’s father, Confirmation of Enrolment (COE’s) for a Diploma and Advanced Diploma in Leadership and Management commencing 14 January 2019 and ending 8 January 2021.
The applicant had submitted written responses to the Department’s Notice of Intention to Consider Cancellation (NOICC) dated 6 and 8 January 2017 prior to his visa being cancelled.
The hearing
The applicant stated he had arrived in Australia holding a tourist visa and had applied for a student visa on 13 October 2015. He commenced studying a Diploma of Management in April 2015 but in July that year, the applicant said his father suffered liver failure and he had to return to Hong Kong. According to his evidence, his college asked for verification of his father’s illness and travel arrangements which were provided. However, while the applicant was in Hong Kong, his father died and funeral arrangements had to be made.
The applicant claimed he resumed his studies in November 2016 but his mood was awful. He said he was also bullied by classmates but he did not report the behaviour to his education provider because he thought he would just be told to avoid the people. He did not think the institutions standards or teaching were very good. The applicant explained that as the oldest son and he has a responsibility to his family. The Tribunal asked the applicant whether he considered returning to Hong Kong until he had dealt with his personal issues and he said he had thought about it but his mother encouraged him to stay. The Tribunal asked the applicant whether it was correct that he had not been enrolled to study for a period of 10 months. He did not dispute that was the case.
The Tribunal then discussed in more detail the circumstances in which the grounds for cancellation arose. The applicant repeated that it was due to his father’s illness and subsequent death. As to why he was unable to continue studying for an extended period of time, the applicant said he did his best but was stressed. He reiterated that he was responsible for the family in Hong Kong. The Tribunal asked the applicant why this did not motivate him to study. According to the applicant his family were expecting him to go to school but he had to take pills to sleep and then became “homebound”. The applicant claimed everything had been arranged for him by an agent and he had no one to talk to about his problems and was in a bad mental state. In this regard the applicant said he consulted a Chinese herbalist who said he was suffering stress as well as liver problems; the applicant stated he also lost his hair.
The applicant was reminded that as the holder of a student visa, he was not permitted to remain in Australia without studying. The applicant claimed he had not known the consequences if his enrolment was cancelled. He said he had consulted an agent about reapplying to study but he was unable to re-enrol due to his ongoing Tribunal matter. Nevertheless the applicant advised he had since found a college that is willing to accept him.
The applicant declared he is supported in Australia by his parents and by the income from rental properties in his home country. He said his parents have invested in his studies. The applicant said he has worked in a factory in Australia but only for a period of six months. The applicant said prior to coming to Australia he had worked in hotel but in order to improve himself he needed to study further. He chose Australia because it is stable and multi-cultural. The Tribunal then asked the applicant whether he had any compelling need to remain in Australia. The applicant claimed there were family expectations and he had not yet completed his studies due to his enrolments being cancelled. The applicant stated he has complied with all other visa conditions.
Regarding any hardship that may result, the applicant said he was not concerned about financial matters as his family are comfortable, particularly since his father passed away. The applicant told the Tribunal that he recently attended a class from the Advanced Diploma of Leadership and Management he had recently enrolled in and found that the vibe as well as the teaching was better. He said his goal is to be a successful manager.
The applicant advised there were no consequential cancellations that would result from his visa being cancelled although he has a girlfriend from Taiwan. The applicant declared he is emotionally dependent upon his girlfriend. He said he is aware that if his visa is cancelled he may become unlawful and may not be able to apply for any further visas in Australia. The applicant said he wants to continue his studies particularly since he has read about the achievements of friends in Hong Kong. The applicant reiterated he had encountered poor standards when he first arrived to study in Australia.
In conclusion, the applicant admitted he was not perfect and had made mistakes. However, he claimed his agent did not care about his situation and had just wanted money. According to the applicant his only hope is to be able to continue studying. He said his family and his girlfriend are expecting it and he undertook not to waste more time.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant had been enrolled to study Diploma courses in Management at Sydney College of Business and Information Technology (SCBIT). However, his enrolment was cancelled after he returned from compassionate leave but did not continue the course. The applicant did not dispute that he has not studied since 4 March 2016. 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).
Consideration of the discretion to cancel the visa
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’.
· 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
The applicant was granted a student visa on 16 April 2015 having first arrived as a tourist. Since being granted a visa the applicant had not completed any courses and did not provide independent evidence of stress and/or depression that he claims was the reasons for his failure to study. The applicant did not explain satisfactorily why he was unable to comply with the conditions of his student visa for a long period. On the evidence before it, the Tribunal is not satisfied that the applicant’s purpose to travel to and stay in Australia was to study.
During the Tribunal hearing the applicant made a submission regarding a compelling need to remain in Australia. He claimed his family are expecting him to complete his studies and are depending on him. Also he has a girlfriend who has supported him and on whom he is dependent. The applicant claimed he had been looking for another education provider and has now found a college that will accept him. The Tribunal finds that although the applicant may wish to continue studying, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.
· the extent of compliance with visa conditions
There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this aspect some weight in the applicant’s favour.
· degree of hardship that may be caused (financial, psychological, emotional or other hardship)
During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. In response, the applicant said he was not concerned about financial hardship as his family are comfortable. The applicant referred to having a girlfriend from Taiwan that he is emotionally dependent upon and the Tribunal accepts there may be an element of hardship in that regard if his student visa is cancelled. However, the Tribunal considers the applicant and his girlfriend’s arrangements for their relationship and where they will live are matters for them to decide.
The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.
· 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
The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for a 10 month period. The applicant gave two reasons for this; the first was that he was not happy with his education provider in Australia. The applicant claimed in his written response to the Department that SCBIT had few students and the teaching and learning environment was inadequate. During the hearing he said he was bullied by other students but did not report the matter. The applicant said his agent pushed him to continue at SCBIT and in hindsight, he would have chosen a better college. The Tribunal understands an applicant may encounter difficulties with the suitability of an education provider or a particular course but it is their responsibility to seek assistance and ensure they continue to comply with the conditions of the student visa. It is not open to a visa holder to remain in Australia without being enrolled or studying. The fact that the applicant was able to provide COEs to the Tribunal at the hearing indicates he was able to enrol and study at a different college.
The second reason the applicant gave regarding the circumstances that gave rise to grounds for cancellation was that his father became ill before passing away. Medical evidence was provided regarding the ill-health and death of the applicant’s father which the Tribunal accepts. The applicant said he became stressed and was unable to study after he returned from Hong Kong. This does not explain why the applicant failed to study for an extended period and he did not provide independent evidence that would support his claims in this regard.
The Tribunal sympathises with the applicant regarding his personal problems; in particular, his father’s death and accepts this unfortunate event was beyond his control. Nevertheless, the applicant’s response to these matters was within his control. He took appropriate compassionate leave to return to Hong Kong because of his father’s illness but on his return, he did not continue his studies. He could have deferred his studies until he was able to sort out his issues with his education provider and the loss of his father. Instead he remained in Australia but did not study, in breach of his visa conditions. The issues faced by the applicant are part of the vicissitudes of life that most people encounter at some point. Although they are stressful events they are not adequate reasons for the applicant to stay in Australia while not complying with the conditions of his student visa and failing to study over a long period of time.
The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or seek a deferment of his studies during the period when he was not enrolled to study, in breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.
· past and present behaviour of the visa holder towards the department
There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.
· whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that there would be any consequential cancellations 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 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
The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.
· 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
There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.
· if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Subclass 572 Student Visa is not a permanent visa.
· any other relevant matters
There are no other relevant matters to be considered in the applicant’s case.
Conclusion
The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Wendy Banfield
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.

[2019] AATA 861

4 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice