WONG (Migration)

[2019] AATA 5999

WONG (Migration) [2019] AATA 5999 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHEW LENG RICHARD WONG

CASE NUMBER:  1717516

HOME AFFAIRS REFERENCE(S):          BCC2017/1653028

MEMBER:Mark Bishop

DATE:4 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 October 2019 at 11:35am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – enrolment in a registered course – applicant ceased courses – financial assistance to the applicant’s parents in Singapore – intention to remain permanently in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 August 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 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 4 October 2019.  

4. The applicant provided a copy of the decision record to the Tribunal.

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 notified of the intention to consider cancellation (NOICC) on 24 July 2017   by email and the notice invited the applicant to respond in writing. The applicant did not respond to the NOICC.

10. Based on information contained in PRISMS and reported in the decision record the delegate made a finding the applicant had not been enrolled in a registered course of study from 5 September 2016. Therefore, the delegate made a finding the applicant did not meet the requirements of condition 8202(2)(a).

11. Having regard to the information in the PRISMS as outlined in the decision record and confirmed as correct by the applicant in evidence, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 5 September 2016. The Tribunal finds that he breached condition 8202(2)(a) of his visa.

12. 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).

13. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

14. 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’

    Consideration of discretion

15. 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

16. The applicant advised he came to Australia to study and get higher qualifications to get a better job. There is no evidence before the Tribunal to suggest that the applicant’s original intention for travel to and stay in Australia was not for the purpose stated in his application of study. Therefore the Tribunal gives this consideration little weight.

17. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

18. The applicant advised he was a citizen of Singapore. His wife is a citizen of China. She lives in China with an adopted child. His wife is not working in China. The applicant needs to study to gain a qualification to get a job to earn an income to support his family. He advised he could bring his wife to Australia but had decided not to bring her. Her works non full time in construction. He earns approximately $1,500 per week to support himself in Australia and his family in China. He remits approximately $3,000 AUD to $4,000 AUD to his wife in China on a monthly basis. The applicant advised the hardship he would suffer would be the loss of Australian income to support his family in China. He advised he sends small amounts of money to his parents in Singapore. He advised hardships in the future arose out of possible loss of income.

19. A student visa is granted for the purpose of study. A visa holder is expected to enrol in a course of study and progress academically. Generally there are provisions that permit a degree of part time work. The applicant in not studying in Australia supports his family in China, himself in Australia and provides some financial assistance to his parents in Singapore.

20. If his visa is cancelled the applicant can return to his home country of Singapore obtain employment and continue to provide assistance to his family in China. The Tribunal accepts the applicant may suffer some financial difficulty if his visa is cancelled.

21. If the applicant’s visa is cancelled he will become an unlawful non-citizen and liable to detention under s189 and removal under s198 of the Migration Act 1958. The applicant will have limited options to apply for further visas in Australia and may be required to return to his country of origin. There is no evidence that any family members in Australia will be negatively impacted by the cancellation of his visa. Although there may be some hardship to the applicant as a result of the cancellation the Tribunal is satisfied that this is not enough of a reason to make a decision to not cancel the applicant’s visa.

    Circumstances in which ground of cancellation arose

22. The grounds for cancellation arose when the applicant failed to maintain his enrolment in a registered course of study for a period of over 9 months. The applicant was stressed and depressed at the time of cancellation of his visa. The applicant advised he did not receive any medical advice or treatment at this time. He attempted to overcome his difficulties on his own. The Tribunal considers the period of non-enrolment to be significant and therefore place no weight on this consideration in the applicant’s favour.

    Past and present behaviour of the visa holder towards the department

23. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach

    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

24. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

25. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

26. There is nothing before the Tribunal to indicate there are international obligations to consider.

27. Any other relevant matters

28. The Tribunal asked the applicant if he wished to make further submissions. He advised he wished to gain an Australian qualification. He wished to live permanently in Australia. He advised he wished to bring his family in China to live with him in Australia so they could take advantage of the education system in Australia.  

29. The Tribunal is not aware of any other relevant matters.

30. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-573 visa  and that a breach of almost twelve months is significant in the context of a student’s study period.

31. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

32. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mark Bishop
    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.