Yip (Migration)

[2024] AATA 3068

Yip (Migration) [2024] AATA 3068 (31 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wai Lok Yip

REPRESENTATIVE:  Mr Joseph Yao (MARN: 0743862)

CASE NUMBER:  2211643

HOME AFFAIRS REFERENCE(S):          BCC2022/2176724

MEMBER:Rachel Westaway

DATE:31 July 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 31 July 2024 at 2:51am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa – breached condition 8202 – applicant had not been enrolled in a registered course of study since 18 May 2021 – limited financial means to pay for fees – no compelling need to for the applicant to remain in Australia – decision under review affirmed

LEGISLATION 
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 August 2022 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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a full-time registered course of study. 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 15 August 2023 at 9:30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

4. The applicant was represented in relation to the review however the representative did not attend the hearing.

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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

   Background

7. The applicant is a 35-year-old male from China.

8. The applicant was granted a TU-500 visa on 29 July 2020.

   Tribunal Application

9. The applicant lodged their application for review on 11 August 2022. They provided the Department of Home Affairs decision record which outlined the PRISMS and the notification letter and their Chinese Passport with their application for review.

   Department of Home Affairs Application

10. On 15 July 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant.

11. The applicant did not reply. On 3 August 2022 the Department notified the applicant that his visa was being cancelled.

12. The Department found that according to PRISMS records, the applicant did not maintain enrolment in a full-time registered course since 18 May 2021.

13. In addition, the applicant did not provide any evidence to show that he was enrolled in any other registered course of study in Australia.

14. Therefore, the visa holder has did not maintain enrolment in a full-time registered course of study as required by visa condition 8202 attached to his visa.

15. The delegate therefore found that there was ground for cancellation under s116(1)(b) of the Act, as the visa holder has failed to comply with a condition of his Student visa.

    Did the applicant comply with Condition 8202?

16. 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)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·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).

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

18. The applicant provided the Tribunal with a copy of the delegate’s decision which detailed the PRISMS and outlined that the applicant had a previous visa cancellation for a Student (Vocational Education and Training Sector)(subclass 572) visa cancelled on 7 June 2006 under section 116(1)(b) of the Migration Act 1958.

19. The applicant was enrolled in a Bachelor of Business from 13 July 2020 – 30 June 2023, this was not completed, and it was cancelled for non-payment of fees.

20. The Tribunal discussed the issue at hand with the applicant at hearing. He stated that his brother had used his course fees that he held in trust to repay debts during COVID as he had lost his employment as a chef at Lucky Chan restaurant at Crown Casino in Melbourne. He claims his brother had a gambling problem. He confirmed he was unable to pay his fees and as such his enrolment in his course was cancelled. The course provider notified the Department and the applicant was in breach of condition 8202(2)(a) as he was not enrolled in a registered course.

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

    Consideration of discretion to cancel the visa

22. 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’.

23. The applicant made the following oral submissions at the Tribunal hearing.

24. He claims he first came to Australia when he was 18 years old in 2005 and remained for a year. He had graduated from high school and he wanted to experience education in another country however he did not like Australia and he returned to Hong Kong. He was on a student visa and he was studying English and also enrolled in a Tafe course. He confirmed he did not complete the Tafe course because he was homesick and was struggling. He stated that his attendance at Tafe was below 80% and he was notified by the course provider that they had informed the Department. He claims the Department were helpful and suggested remedies but he was homesick and wanted to return to Hong Kong. He claims his visa was cancelled and he returned home.

25. He stated that he returned to Australia in 2017 after he had been working in Hong Kong. He stated the situation had changed as his elder brother had moved to Australia and he was married with family here and his parents had a restaurant in mainland China. He believed he could study cookery in Australia and return to Hong Kong and assist his parents. He stated that he completed a Certificate 3 and 4 and an Advanced Diploma in Hospitality. He then enrolled in a Bachelor of Business online.

26. The applicant stated that he after completing his Advanced Diploma he believed he was not good at study. He claims to have consulted with his education provider.

27. He obtained Certificate 4 but the Advanced Diploma was when he struggled and he also consulted education agent and he thought about transferring and going to University. He was about to transfer however it was the outbreak of COVID and he couldn’t. His educational agent told him that due to COVID there were no hospitality courses so he moved to a finance course. He enrolled in Bachelor of Business majoring in finance and was studying online.

28. He was living with his elder brother at the outbreak of COVID and he completed the first semester, and his brother lost his job which was problematic as he was responsible for the applicant’s course fees. His brother was also struggling with his own debts and marital issues.

29. His elder brother did not expect to lose his job as a chef at Lucky Chan at Crown Casino. Whilst he was not fired COVID meant he could not work and used the fees to pay some of his own debts.

30. In the beginning they tried to resolve the issues and did not discuss it with their parents and he did not tell the university however when COVID ended it was his fault as he could not pay the fees and his COE was cancelled.

31. The applicant stated that the university did not send a notification pertaining to the non-payment but he claims that by the time his brother’s career was back on track he realised his university reported him. He stated that it took a long time to realise this. He stated he then realised that he had another brother needing kidney dialyse and the family needed money to put aside for this.

32. His agent told him that he could not do anything and so he undertook part time work at the restaurant and worked in kitchen.

33. He stated that his brother still owes money. He has paid most of his debts. He has not paid his tuition and he thought they could make this up.

34. His brother continues to have financial issues.

35. The applicant stated that he has tried to save money to pay for his future tuition and stated he has enough for 2-3 semesters. The applicant stated that his brother who amassed the debt did so because of a gambling addiction and owes more than $100,000.

36. The Tribunal noted that there was no evidence before it of the applicant’s brother’s debt or gambling addiction or the claimed savings.

37. The Tribunal discussed with the applicant examples of the factors pertaining to the use of its discretion.

38. The applicant discussed his prior immigration history outlining that in 2005 his visa was cancelled because his attendance was insufficient being under 80% because he was home sick. The Department offered to provide him with assistance however he wanted to go home.

39. He stated that if his visa is cancelled then he will return to Hong Kong.

40. He explained that he has a brother in Hong Kong how has the kidney related health issues and only 20% functioning ability and he stated that his mother has tried to commit suicide and his elder brother is giving her worries. He wanted to avoid causing his family further distress.

41. He confirmed that he has no partner or children in Australia.  He lives with his brother and his wife in Point Cook. His sister-in-law looks after her son who is 6 years of age.

42. The applicant concluded by saying that it is his fault and chose not to tell his parents and older brother the severity of the situation because he wanted to minimise the distress and he hoped he could finish his course.

    Considerations pertaining to cancellation.

    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

43. The applicant held a student visa which has been cancelled and is the subject of this review. His intention was to study in Australia. His brother and sister-in-law and their child live in Australia and he has resided with them during the process of his appeal. The applicant claims he would like to complete his studies. He believes the cancellation would impact his parent’s wellbeing and cause them distress. He is currently working. The Tribunal acknowledges the applicant’s claims that he would like to complete his studies and he need to avoid causing distress to his parents.

44. Whilst the applicant has made claims about the disappointment a cancellation would cause him and his family and his desire to complete his studies, he has outlined his many concerns with studies in the past including home sickness, limited financial means to pay for fees and  difficulty in studying.

45. The Tribunal accepts that the applicant intended to study on his student visa however does not accept that there is a compelling need to for the applicant to remain in Australia and gives this consideration limited weight in favour of the applicant and not cancelling the visa.

    the extent of compliance with visa conditions

46. The applicant has not maintained his enrolment in a registered course of study since 18 May 2021 and as such has not complied with condition 8202 of his Student visa.

47. Attached to the applicant’s current student visa is condition 8516 which requires the applicant to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. Namely, that he is enrolled in a course of study.

48. The applicant has not maintained his enrolment in a full time course of study since 18 May 2021 and as such would not satisfy the primary criteria for the grant of the Student visa.

49. There is nothing further before the Tribunal which indicates that the applicant has not complied with other conditions.

50. The Tribunal gives this consideration significant weight in favour of cancelling the visa.

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

51. The Tribunal acknowledges the family issues outlined by the applicant, namely his brother’s gambling, marital and debt issues and his other brother’s health issues and his concern for his parents and accepts that a cancellation of the visa would cause them distress and disappointment. Further, given the significant financial commitment that is required for an overseas student, the Tribunal accepts that a cancellation would be considered a waste of money if the applicant is unable to complete his studies.

52. The Tribunal also accepts that the applicant would be disappointed if the visa is cancelled.

53. The Tribunal gives these factors a little weight in favour of the applicant and not cancelling the visa.

    circumstances in which ground of cancellation arose. beyond the visa holder’s control

54. The Tribunal acknowledges that the cancellation occurred because the applicant was not enrolled in a registered course. The applicant claims that this is because his brother used his fee money to pay debts caused by gambling and his unemployment during COVID.

55. The Tribunal has no evidence before it of the debts the applicant claims his brother had and his gambling addiction. The applicant claimed he only learnt after COVID that his course provider had reported him to the Department and cancelled his enrolment.

56. The Tribunal struggles to accept these claims made by the applicant as there is no supporting evidence. Further, the Tribunal does not accept that the applicant would not have been aware his course provider had cancelled his enrolment. If this was the case then he would not have had access to his lectures and tutorials.

57. The applicant’s fees would have been sent to him directly and he would have been sent further reminders if they were not paid in order to try and avoid cancellation of his enrolment. The applicant has provided no evidence to negate this however the Tribunal accepts that there was clearly an issue with the applicant paying his fees and it also accepts that the applicant’s brother may have lost his employment during COVID. However, it is upon the applicant to monitor payment of his tuition fees and to maintain his enrolment and if there is an issue it is his responsibility to contact the Department. He did not initiate any contact. There are no factors beyond the applicant’s control that the Tribunal accepts. As such the Tribunal gives this consideration only minimal weight in favour of not cancelling the visa.

    past and present behaviour of the visa holder towards the department

58. There is no adverse information before the Tribunal pertaining to the applicant. The Tribunal gives this consideration a little weight in favour of not cancelling the visa.

    Whether there would be consequential cancellations under s 140

59. This consideration is not relevant to the applicant’s situation and no weight is given to it.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

60. If the visa is cancelled, the visa holder would become an unlawful non-citizen and could be liable for detention under section 189, and removal under section 198 of the Act if he does not voluntarily depart Australia.

61. The Tribunal has considered the consequences of a cancellation and accepts that if the visa is cancelled section 48 of the Act would apply and the this would mean the applicant has limited options for applying for further visas in Australia and the applicant may also be affected by Public Interest Criterion, limiting the grant of a further visas for a specified period.

62. I give this consideration some weight against cancelling the visa.

    whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation  

63. The applicant is a citizen of Hong Kong and has not raised any protection claims and as such the Tribunal has not considered Australia’s non-refoulement obligations under the Refugee Convention.

64. There is no information before the Tribunal to indicate that Australia has any other international obligations that may be impacted by cancellation of the applicant’s visa.

65. The Tribunal gives these considerations a little weight in favour of cancelling the visa.

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

66. This factor is not relevant to the applicant’s situation and as such no weight is given to it.

    any other relevant matters.

67. There are no further considerations.

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

    DECISION

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

    Rachel Westaway
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(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.