YEUNG (Migration)

[2019] AATA 2408

YEUNG (Migration) [2019] AATA 2408 (3 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hong Kit YEUNG

CASE NUMBER:  1809469

HOME AFFAIRS REFERENCE(S):           BCC2017/4262010

MEMBER:Mark O'Loughlin

DATE:3 July 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 03 July 2019 at 10:19am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances beyond applicant’s control – health issues – delay in renewal of Confirmation of Enrolment – administrative problems on the University’s part – decision under review set aside

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 March 2018 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 (the Act).

2. The delegate cancelled the visa on the basis that the delegate was satisfied that the applicant had not been enrolled in a registered course from 24 June 2018 to the time of the delegate’s decision on 28 March 2018 and further that the grounds for cancelling the visa outweighed the reasons for not cancelling it. 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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. The applicant retained a representative and supplied a substantial amount of further information in relation to both the question of enrolment and the question of whether the decision to cancel the visa should be made.

   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)

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course between 24 June 2017 and 28 March 2018.

8. The applicant has submitted 2 relevant letters from the University of SA in relation to his enrolment over this period.

9. The first, dated 29 June 2018 from a team leader at Campus Central City West, attaches  some “certified” copies of the applicant’s Summary of Enrolments. Those documents have been stamped but not signed.

10. The summaries suggest that the applicant was enrolled in Study Period 5 2017 and Study Period 2 or 2018.  Those study periods represent Semester 2 2017 and Semester 1 2018 and the Tribunal finds that they effectively cover the period during which the delegate found that the applicant was not enrolled.

11. The Tribunal further notes that the enrolments purport to be in the DBIM and LBPC programs which are registered courses.

12. The second letter from University of SA is dated 7 March 2019 and is signed by the Director of Student and Academic Services.

13. That letter suggests that the applicant was last enrolled in the DBIM in Study Period 5 2016 (ie Semester 2) and that at the start of Study Period 2 (semester 1) 2018 he applied to renew his Conformation of Enrolment (CoE).

14. There is an explanation for the delay in getting that CoE in 2018 and this explains why the applicant did not have a new CoE at the time of the delegate’s decision.  It appears clear that that was due to some administrative problems on the University’s part.

15. On the other hand, the letter appears to suggest that the applicant was not enrolled in anything during 2017.

16. The applicant has also provided a statement in which he says that he was suffering from medical issues in 2017 and that in July the University sent him an email saying that he did not have a CoE “even though I was still internally enrolled”.

17. The Tribunal, having considered the documents from the University and the applicant’s statement, is not satisfied that the applicant was enrolled during the second semester of 2017 or the first semester of 2018 until 29 March of that year.

18. 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

19. 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’

20. The Tribunal is satisfied on the basis of the information provided, including medical evidence, that the applicant’s health problems in Study Period 5 of 2017 gave rise to any irregularity with his enrolment in that time.  The Tribunal is satisfied that those matters were outside of the applicant’s control.  The Tribunal accords this significant weight against exercising the discretion to cancel the applicant’s visa.

21. The Tribunal is further satisfied that those health issues resolved to the point that they did not substantially disrupt the applicant’s ability to study in Study Period 2 of 2018, but that there were delays in processing his enrolment which were also outside of the applicant’s control.  The Tribunal accords this significant weight against exercising the discretion to cancel the applicant’s visa.

22. Further there is evidence that cancellation of the applicant’s visa would result in some financial, psychological and emotional hardship for both the applicant and possibly his parents and the Tribunal accords that consideration some weight against exercising its discretion to cancel the applicant’s visa.

23. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia, whether he has a compelling need to travel to or remain in Australia, the extent of his compliance with visa conditions, his past and present behaviour towards the Department, and any other relevant matters and does not find that any of these considerations weigh in favour of the exercising the discretion to cancel the applicant’s visa.

24. The applicant has properly conceded that his visa is cancelled there would be no consequential cancellation under s 140 of the Act nor would there be any breach of Australia’s obligations under any international agreements.  The Tribunal finds that these considerations do not weigh either in favour of or against exercising the discretion to cancel the applicant’s visa.

25. The Tribunal further notes that if the applicant’s visa is cancelled he will become an unlawful non citizen liable to detention and removal and further will be restricted in applying for further visas.  In these circumstances, in which the Tribunal finds that the reasons for the applicant’s breach were essentially outside his control, the Tribunal finds that this consideration carries come weight against exercising the discretion to cancel the applicant’s visa.

26. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

27. The Tribunal further notes that the applicant, through his representative, requested that the applicant’s name be kept confidential in all publications in relation to the application, and directed the Tribunal’s attention to a medical report from SA Health dated 8 December 2018 in support of that submission.

28. Having considered that evidence the Tribunal finds nothing to suggest a medical basis for keeping the applicant’s name confidential and declines to do so.

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    NOTE

    Mark O'Loughlin
    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.