1418639 (Migration)

[2015] AATA 3545

1418639 (Migration) [2015] AATA 3545 (26 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hai Dang Tran

CASE NUMBER:  1418639

DIBP REFERENCE(S):  BCC2014/2762446

MEMBER:George Haddad

DATE:26 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 26 October 2015 at 4:27pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 November 2014 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116() on the basis that 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 28 May 2015 and 8 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.1161)(fa)(i)(). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

8. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

9. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

   Background

10. The applicant is a Vietnamese national. He was granted the Subclass 573 visa on 17 April 2013 on the basis of enrolment in a Bachelor of Commerce as his principal course. This was to be preceded by Diploma of Commerce after completing an English language course of around 30 weeks.

11. The delegate’s decision record sets out the applicant’s study history since he first arrived on 29 April 2013. Put simply, the history is poor. The applicant’s attendance was low and his progress was unsatisfactory. The applicant changed providers from Deakin University to Sheila Baxter Institute and in September 2014 his enrolment in the bachelor degree course was cancelled. With the cancellation of enrolment in a higher education sector course, the applicant was no longer eligible for the Subclass 573- Higher Education Sector visa.

12. The delegate issued the s.119 Notice of Intention to Consider Cancellation (NOICC) on 20 October 2014. The NOICC identified the reasons for considering the cancellation of the visa and invited the applicant  to comment why his visa should not be cancelled. He did not respond to the invitation to comment. The delegate decided to cancel the visa on the basis of the information available to her by letter dated 14 November 2014.

    The review

13. The applicant appeared before the tribunal differently constituted on 28 May 2015 and gave oral evidence in relation to the issues arising in the review  On 30 June 2015 the member ceased to be a member of the Tribunal and he had not made a decision on the review.

14. I considered the material before me including the audio file of the hearing of 28 May 2015 and was unable to reach a decision on the matter. The applicant appeared before me on 8 October 2015 accompanied by his migration agent. 

15. The applicant stated that he was only 17 years of age when he first arrived in Australia and found it very difficult to adapt to the new environment. He stayed with an Australian family in Blackburn and although he came to know a Vietnamese Australian woman, she lived in Sunshine and he saw her only occasionally. He spoke candidly that in Vietnam his parents had “spoilt” him. In Australia everything appeared different to him, food, lifestyle…

16. The applicant said he did not complete the English language course which was a pre-requisite to starting the diploma course.

17. The applicant applied for a Subclass 572 visa which was refused by a delegate of the Minister and at review, the then Migration Review Tribunal affirmed the decision.

18. Having regard to the applicant’s history in Australia as a student, in particular the cancellation of enrolment in higher education course, I am satisfied that the ground in s.116(1)(fa)(i) is made out.. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

19. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

20. I asked the applicant during the hearing why he had applied for the Subclass 572 visa as it would indicate that he had abandoned his plan to study in the higher education sector; given the question for the Tribunal is whether or not his Subclass 573 – Higher Education Sector visa should be re-instated, it is a relevant consideration. The applicant said that he has been very confused and he applied on advice from a migration agent (different from his current agent). He said the agent had applied and assured him it was the correct course of action to comply with visa conditions. And he had begun to doubt his ability to study a higher education course so he agreed to confine his study plan to diploma level.

21. I put to the applicant that it appears that at review, he was pursuing both the Subclass 572 – Vocational Education and Training Sector and the Subclass 573 – Higher Education Sector visa. That would give rise to questioning his motive and whether he is a genuine student. He replied that he was confused and followed advice from migration agents; he was very anxious and feared being deported and returning to Vietnam not having achieved any studies.  

22. However, with the passage of time and realising the consequences of his past conduct he said he is committed and determined to return to studying a higher education course.  He said that he has matured significantly and his parents have assured him of their continued support to help him return to his studies.

23. The applicant stated that he has not been able to secure any enrolment in a registered course because of the ‘No study’ condition attached to his current bridging visa. However, he has provided evidence of sitting English language assessment tests with Cambridge International College and RMIT University. He is consulting a different migration agent (the current agent) and is satisfied that he is receiving appropriate advice. He is consulting an education agent and has secured a current letter of offer from Cambridge International College in a package of courses leading to a Bachelor of Business and continues to pursue a place at RMIT University as he would prefer to study at RMIT.

24. I have considered the applicant’s circumstances, his study history and the arguments he has presented at review. I have considered the purpose of the visa granted to him in April 2013 – to study a higher education course.

25. I have also considered the delegate’s decision and that the delegate had not received any comments from the applicant following the NOICC. It is difficult to expect that she might have reached a different decision with the information she had. I have considerably more information and evidence than the delegate had available to her.

26. In relation to the degree of hardship, the applicant and his migration agent submitted that the applicant did not complete year 12 in Vietnam and if he were to return to Vietnam, the education system does not easily allow him to progress to higher education. He would be excluded from applying for a visa to study in Australia for some years. With a student visa cancellation in Australia his agent submits that he is less likely to be granted a student visa to a country other than Australia. She stressed the significance of the applicant’s young age when he arrived in Australia as a significant factor.

27. I accept that arriving in Australia from Vietnam at age 17 would be more difficult to adjust to a new environment especially with little to no support from friends or relatives of his culture. For this reason I also accept that the applicant accepted unquestioningly the advice he received from his previous migration agent which apparently was not the best course of action for the applicant. 

28. Relevantly, I also accept that the applicant has matured and has come to realise, through the experience of his visa issues, the consequences of compliance with the purpose of a student visa.

29. The applicant impressed as honest and credible in his oral evidence to the Tribunal and sincere in his determination to return to his studies. I accept his commitment to return to his studies. His visa, if reinstated would expire in March 2017, it would give the applicant more than one year to demonstrate his commitment as he would be required to apply for a further student visa if he were to complete a bachelor degree in Australia. I accept that in the circumstances and at his age, he would suffer significant and undue psychological and financial hardship if his visa were to remain cancelled. I am satisfied that the correct or preferable decision is to give the applicant the opportunity to demonstrate his commitment to being a genuine student for the remaining life of his Subclass 573 visa.

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

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    George Haddad
    Senior Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.