1501161 (Migration)

[2015] AATA 3698

1501161 (Migration) [2015] AATA 3698 (18 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Thang Nguyen

CASE NUMBER:  1501161

DIBP REFERENCE(S):  BCC2014/3212545

MEMBER:Stuart Webb

DATE:18 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 18 November 2015 at 4:44pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 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 no longer met subclauses 573.231 or 573.223(1A) and had not complied with Condition 8516. The delegate noted that the applicant had been enrolled in a higher degree course to be provided with the 573 visa, but left his course provider and enrolled in vocational courses in hospitality. 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 17 November 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. The applicant provided a copy of the delegate’s decision 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. 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

7. 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.

8. The applicant arrived in Australia in April 2013. The applicant had been initially enrolled in an English language course, leading into a Diploma of Business then a Bachelor of Business (Management) course. The applicant did not conclude his original English course, ceasing his studies in April 2014 and enrolling in a Certificate I and Certificate III in English courses. His enrolment in his Diploma of Business and Bachelor course was cancelled on 18 March 2014. The applicant has subsequently enrolled in a Diploma of Management course. He has not re-enrolled in a higher degree course.

9. The applicant did not commence his principal courses, the Diploma of Business and Bachelor of Business (Management) due to failure to complete the pre-requisite English course in 2014. His enrolments in these courses were cancelled on 18 March 2014 due this failure.  On 27 November 2014 the Department sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant. On 16 December 2014 and 13 January 2015 the applicant submitted a response to the Department.

10. The applicant was not enrolled in nor had a CoE in a higher degree course from March  2014 until the cancellation of his visa in January 2015. The Tribunal considers that he had not been enrolled in a higher degree course for around 9 months. This is in breach of condition 8516 that he continues to satisfy the primary criteria for the grant of a visa. Cl.573.231 requires that an applicant be in enrolled in, or is the subject of a current offer of enrolment in a principal course specified for 573 courses. The applicant did not meet this criterion for these 9 months.

11. 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 the power to cancel the visa should be exercised.

    Consideration of discretion

12. 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’.

13. The applicant provided the following correspondence to the Department. On 16 December 2014 the applicant stated:

    Thank you so much for your respond. I feel very crazy while I read your email. I really do not know what to do, I read and I realized that this is my fault, not to find out all the things that I have to do or what I have to follow while I am in Australia.

    My English is very week, so when my parents decided to let me to study in Australia, I was so happy but also quite nervous because of English skill. My parents said Australia is English speaking country so they can help me to improve very quick. The agent in Vietnam did all for me and when they gave me the visa, they did not tell me anything about visa conditions. Therefore, when I studied in Victoria University, I have to say that my ability of studying language is really bad, I studied twice for a level and failed and failed, it was hard for me to study in academic way even though I studied very hard. Then my friend told me that may be I should change to other school to study which might fit to my ability because Victoria University is in high ranking of academic so I think they require more difficult. I changed to Baxter to study English but Baxter is not really good Institute, so as advised of my friends, I changed to study at TK, this is a really good course, they taught me a lot and my English is improving.

    I did not get any courses after that because I think I need to complete my English first, get the certificate before I can joy any courses so I make sure that my English is good enough to study the main course. However, now another problem to me. I already apply and made payment to Cambridge College to get Bachelor course, but they said they are unable to issue coe for me now as the system ask something I do not understand, so they told me that I need to wait as they are waiting for confirmation from the system.

    So I write this letter to you to explain what happened to me and ask for your forgive of my mistake and I will send you the Bachelor course as soon as I get the coe. I send you all my coes and my letter of offer for my Bachelor course.

    I really hope that you understand me and let me keep studying as I am trying my best to get Certificate III in EAL at TK now.

14. On 13 January 2015 the applicant provided an update on the attempt to enrol at Cambridge International College. This stated:

    As previous email, I am trying to enroll in Bachelor course but unfortunately, the Cambridge College ask me for release letter but I do not have (please see the attachment), now I am trying to apply to other University if they accept me.

    Please let me have more time to apply for bachelor course

15. The applicant appeared before the Tribunal with his advisor and an interpreter. The applicant’s evidence was very vague and limited, he had very little idea as to what he had studied in Australia and when he had studied. His agent noted he was nervous. However the applicant’s very limited ability to remember details of his study history and vague evidence as provided is of concern to the Tribunal.

16. The applicant told the Tribunal he had completed a bachelor’s degree in PE in Vietnam before coming to Australia. Asked why he enrolled in a  Diploma of Business (Enterprise) and a Bachelor of Business (Management) at Victoria University, the applicant was very vague and limited in his reasons. He eventually stated he wanted to teach PE, and then perhaps open his own business in this area. he gave no other reasons. The Tribunal expressed its concern that the applicant intended to make a significant financial investment in his studies but had little reason for doing so.

17. The applicant commenced his English language course at Victoria University but found it too difficult. He stopped studying in November 2013 after 30 weeks and sought a release. The applicant stated he next started studying a Certificate I course in English at Baxter in July 2014. He had not completed that course.

18. The Tribunal expressed its significant concern at this evidence in two aspects.

19. The Tribunal noted that the Cert I course at Baxter was for conversational English. On the same webpage that detailed the Cert I achievements it was noted that the Cert IV course was available to prepare students for academic study[1]. The Tribunal expressed its serious concern that the applicant did not have the capacity to study at the higher degree level as his English was not suitable. The Tribunal noted that the applicant had provided a ‘written agreement’ from Cambridge International College regarding a Bachelor of Business course, signed on 10 December 2014 but never lodged[2], that required IELTS 6.0. the Tribunal expressed its serious concern that the applicant could not study at the higher degree level due to his poor English skills, as evidenced by his enrolment in a Cert I course.

    [1]

    [2] AAT Folios 55-56

20. It was then up to the applicant’s agent to advise that the applicant had transferred to TK where he had commenced a Certificate III in EAL. The applicant did not provide this information, despite it being part of his previous written submission. It was not clear when he commenced at TK but he was studying that course when his visa was cancelled. The Tribunal asked if the applicant had passed any units in this Cert III course. The applicant stated he had not. The Tribunal noted that the applicant had been in Australia for two and a half years and had not achieved one qualification or commenced any course aside from the language courses. The Tribunal expressed its significant concern at both the capacity of the applicant to study at a higher degree level and his genuineness as a student in Australia. 

21. The Tribunal noted that the applicant had actually stopped studying in November 2013, though his enrolments were not cancelled until later in March and May 2014. The applicant stated he started studying again in July 2014. The Tribunal expressed its significant concern with the applicant’s evidence, given he was in Australia for 8 months without studying. This was not the practice of a genuine student in Australia.

22. The applicant stated he was being assisted by a firm of solicitors he called ‘Luca’, though the information was very vague. This firm was assisting him to change course and find another school. The applicant claimed he was told to wait. The Tribunal noted that this was a very long time, his present advisor noted that students can’t be here for 2 ½ months without studying. The applicant stated he was told to wait by this firm, though he still wanted to study. The Tribunal is extremely concerned by this extended break in his studies. The applicant’s lack of information about what he was doing at this time, or information about this agent who was supposedly advising him at that time, is of real concern to the Tribunal.

23. The Tribunal expressed its concern that the applicant had sought to enrol in a series of English courses only after his substantive courses were cancelled. The applicant stated he was enrolled in a Diploma of Management course with TK, but did not commence this course. The Tribunal considers that the applicant did not intend to commence this course.

24. The Tribunal noted that the applicant had approached Cambridge International College (CIC) about a higher degree course on 10 December 2015, after the NOICC was sent to the applicant. The Tribunal expressed its concern that the applicant contacted CIC at this time only because he was advised he was not meeting his visa requirements, and not for any genuine study reasons. The Tribunal noted that the applicant had not chosen to enrol in the course. The applicant stated he could not as his visa was cancelled. The Tribunal noted that this was not true, as his visa was not cancelled until January 2015.  The Tribunal considers that the applicant contacted CIC only to seek to meet his visa requirements and did not intend to study this course, a course in which he did not enrol.

25. The Tribunal noted that the applicant could return to Vietnam and work as a PE teacher. The applicant stated he really wished to remain here to study, he wished to study further knowledge, to manage his own business in the future.

26. He did not provide any further compelling or compassionate circumstances to the Tribunal, despite being asked if there was anything further he wanted to add.

27. The Tribunal does not consider that the applicant is a genuine student in Australia, let alone at 573 higher degree levels. The applicant spent 6 months studying an English course before dropping out in November 2013 as it was too difficult. He then did not study for 8 months, returning to studying in July 2014 in an English course that was well below the standard required to prepare for academic studies. He was not aware, but his agent noted that he changed to a Cert III course on their recommendation, the applicant had completed about 4 months of this course without any attainments before his visa was cancelled. The applicant has been in Australia since April 2013 with no academic outcome. His enrolments in non-language courses were formally cancelled in March 2014 but as he was no longer studying in the pre-requisite English course from November 2013, his enrolment could have been cancelled at a much earlier stage. While he did seek an enrolment in a further substantive course, the applicant stated that this ceased when he failed to commence the course in August 2014. He did not enrol in any other substantive course, let alone a higher degree course. The Tribunal questions whether the applicant would have been capable of doing a substantive course, given his struggles to complete low certificate English courses.

28. The applicant was vague in his evidence as to why he sought to study a business degree. He stated he wanted to start his own business. The applicant’s nervousness does not explain this highly limited reason as to why he would invest close to $50 000 in higher degree studies. The applicant’s lack of insight and vague and incoherent responses to a series of questions from the Tribunal demonstrate that the applicant may well lack of capacity to study at the higher level in Australia.

29. Given the applicant’s extended break from studying; his failure to enrol in a higher degree course for an extended period, his failure to complete any qualifications during his extended residence in Australia; his failed studies in English at a low level; and his failure to explain why he was studying at the higher degree level, the Tribunal does not consider that the applicant to be a genuine student in Australia, in particular at the higher degree level.

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

    DECISION

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

    Stuart Webb
    Member