1500545 (Migration)

[2015] AATA 3819

1500545 (Migration) [2015] AATA 3819 (1 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nguyen Phuong Linh Tran

CASE NUMBER:  1500545

DIBP REFERENCE(S):  BCC2014/2759266

MEMBER:Magda Wysocka

DATE:1 December 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 01 December 2015 at 5:22pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 January 2015 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(1)(b) on the basis that the applicant on the basis that the applicant had breached condition 8516, which was attached to his Subclass 573 Higher Education sector visa. A copy of the department’s decision record was provided to the tribunal. 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 delegate sets out the following matters in the primary cancellation decision, a copy of which has been provided to the tribunal by the applicant:

   a.The applicant was granted a Subclass 573 visa on the basis of her enrolment in a package of courses with the principal course being a Bachelor of Business.  Her enrolment in the principal course was cancelled by the education provider on 29 April 2014 as she did not commence the prerequisite course, a Diploma of Business, the enrolment for which was also cancelled on 17 October 2013;

   b.The applicant subsequently obtained enrolment in a second package of courses with the principal course being a Diploma of Business.  She did not commence this course or a prior Certificate III course;

   c.The applicant subsequently obtained enrolment in a third package of courses with the principal course being a Diploma of Hospitality.  At the time of the delegate’s decision she was undertaking a Certificate III in Commercial Cookery;

   d.Only after the applicant was sent a Notice of Intention to Consider Cancellation did she then obtain enrolment in a bachelor level course.  At the time the notice was sent, the applicant had not been enrolled in any course since 29 April 2014;

   e.The applicant had only completed two English language courses since her arrival in Australia, and has never commenced studies in the higher education sector.

4. The application for review was initially constituted to a different member of the tribunal before whom the applicant appeared on 19 May 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

5. Before the previous Member could finalise his decision, his appointment to the tribunal ceased on 30 June 2015 and the matter was reconstituted to the Presiding Member.  In making this decision, the tribunal has listened to the recording of the tribunal hearing and has also taken into consideration the applicant’s response to the department’s notice of intention to consider cancelling her visa (NOICC) and submissions and documents provided to the tribunal.

6. 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

7. 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.116(1)(b). 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?

   s.116(1)(b) - non-compliance with conditions

8. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 is attached to the applicant’s visa. This condition requires:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

9. The applicant was granted a subclass 573 visa under streamlined visa processing on 18 February 2013 to undertake an English course, a certificate IV and diploma in business and a bachelor of business.

10. The applicant provided evidence in the form of a letter from CQU, her former education provider, that her enrolment in the bachelor of business was cancelled on 29 April 2104. The applicant conceded that her visa was cancelled.

11. The applicant then provided confirmation of enrolment in a bachelor of business (marketing) on 18 November 2014.

12. On the evidence before it the applicant did not continue to satisfy cl. 573.231/573.223(1A) because he was not enrolled in a higher education degree for seven months. Accordingly the tribunal finds that she breached condition 8516.

13. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(10(b) exists. 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

14. 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’.

15. Prior to the hearing, the applicant provided documents including several emails setting out her correspondence with her former course providers, CQU and Academia and a statement explaining the circumstances that led to her bachelor enrolment being cancelled. The contents of that statement are similar to that contained in her response to the NOICC and are relevantly set out below.  

    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’s evidence is that she came to Australia for the purpose of getting a degree and going home. 

    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

17. The circumstances that led to the cancellation are set out in the applicant’s pre-hearing statement, which she expanded upon at the hearing. Those circumstances are as follows.

18. She arrived in Australia on 25 February 2013 and completed her English course on 5 July 2013. During this time she met students doing different programs including hospitality. She has been interested in cooking from a young age and made various inquiries with institutions and found that William Angliss had the best reputation. Her pre-hearing statement refers to her wanting to study something she liked rather than what her parents or someone else likes.

19. She obtained an offer from William Angliss in June 2013 and then made a request to Academia to release her from her certificate IV and diploma courses so that she can study hospitality at William Angliss before continuing to do her bachelor studies at CQU.

20. It is apparent from documentation provided by the applicant that this precipitated several exchanges of emails between the applicant, Academia and CQU in order to rectify the situation.

21. Academia requested that she obtain a release letter from CQU, her principle course provider. The applicant therefore made a request to CQU to defer her bachelor course one semester so that she could start it after completing her diploma in hospitality at William Angliss. She also requested to change from her bachelor of business to a bachelor of hospitality.

22. It appears from documentation that the applicant attempted to get her deferment until December 2013. During that time she enrolled in a certificate III in Children’s Services (July 2013-December 2013) because she ‘need[ed] to study till things get sorted’. It is unclear why the applicant chose to enrol in this completely unrelated course instead of, for example, continuing with her business studies until things got ‘sorted’.

23. In December 2013 she released that CQU would not give her a release letter so she decided to go ahead straight to her bachelor course and enrolled in an earlier bachelor course. She was then asked to do another 10 week English course but due to her attendance being less than 80% (63% according to documentation provided), CQU refused to enrol her and advised her to do another English course before enrolling again. The applicant claimed that her low attendance was due to her being sick for a couple of days without a medical certificate and to coming in half an hour late after attendance.

24. At this stage the applicant became frustrated with CQU and decided to embark on her hospitality studies, this time with a diploma in hospitality at Academia. She again made a request to defer her bachelor studies with CQU. CQU advised that this was not possible and recommended that she cancel her enrolment and apply for a refund on 18 March 2014. A copy of that email is at the back of folio 33 tf. The applicant acted upon this advice and requested cancellation of her enrolment, which was cancelled by CQU on 29 April 2014.

25. After this she both Academia and William Angliss refused to enrol her because of her bachelor CoE cancellation. Imperial College, however, offered her places in a certificate III, IV and diploma of hospitality. She had commenced that course but then received her NOICC.

26. She did not know anything about visa conditions or immigration law and advised that she acted on the advice of CQU in cancelling her enrolment.

27. After receiving the NOICC she made inquiries and on 18 November 2014 obtained enrolment in a bachelor of business.

28. At the hearing before the previous presiding member, the applicant provided a letter of offer from Kaplan for a bachelor of business; post-hearing documentation was received confirming that it was a bachelor of business in hospitality and tourism management.

29. Her plan is to open a small restaurant with her sister in Vietnam.   

    The extent of compliance with visa conditions

30. The applicant was in breach of condition 8516 for a period of seven months.

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

31. The applicant advised that her parents would not let her continue to study because she has used up so much money already. She would return home with no qualifications and would not know what to do.

    Past and present conduct of the visa holder towards the department

32. The applicant responded to the department’s NOICC and applied unsuccessfully for study rights after her visa was cancelled. There is no other evidence before the tribunal regarding her conduct towards the department.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

33. This is not a relevant factor.

34. Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

35. The applicant currently holds a bridging visa and, if her visa is cancelled, can remain lawfully in Australia until her bridging visa expires. She would become subject to detention if she remained in Australia unlawfully. There is nothing to suggest that any detention in such a hypothetical situation would be indefinite.

    Whether there would be consequential cancellations under s.140

36. There would be no consequential cancellations.

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

37. The applicant did not raise any matters and no matters appear to arise in relation to this.

    Any other relevant matters.

38. The applicant advised that she understood what she did was wrong and asked for a second change so she can start from the beginning and to consider it an important lesson for her.

39. The tribunal accepts that the applicant came to Australia for the purpose of engaging in higher education study. It has considered the circumstances that led to the breach of the applicant’s visa conditions. It accepts and gives weight to the evidence before it indicating that the applicant had expressed an intention to continue with her higher education studies by seeking a deferral of her bachelor course and only cancelling her enrolment in April 2014 upon the advice of CQU.

40. This still leaves, however, the question of why the applicant did not seek to re-enrol in a higher education sector course at any time in the seven or so months prior to the department’s NOICC, given that prior to this it appears that she was intent on maintaining her enrolment and intention to study at the bachelor level. The tribunal does not accept that the applicant did not know anything about visa conditions and immigration law; as it was put to her at her hearing, it is her obligation to be aware of the visa conditions imposed on her visa. Her visa itself, which stated that it was visa for study in the Higher Education Sector should have led her to realise that she needed to study a particular level of course. Furthermore, it is clear in some of the email correspondence between the applicant and various course providers that she was advised she cannot simply study only at diploma level on her 573 course and it was suggested that she could return to Vietnam and reapply for a subclass 572 visa.

41. The tribunal also has some concerns about the applicant’s motivation for changing from business studies to hospitality on the evidence before it. Nevertheless as noted above it has given weight to what appears to have been her intention to study at the higher education level in her dealings with CQU/Academia and has also given weight to the current offer enrolment for study in a bachelor of business (hospitality and tourism management). It gives some weight to the fact that the applicant has already spent considerable time and money to pursuing studies in Australia and that her parents may not wish to give her any further funds to study again. While the tribunal has some concerns about the applicant’s lack of enrolment in a higher education course from 29 April 2014 until after she received the NOICC, it finds that the factors indicating that the applicant’s visa should not be cancelled outweigh those indicating that it should be cancelled and is therefore willing to give the applicant the benefit of the doubt. 

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

    DECISION

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

    Magda Wysocka
    Member