1501916 (Migration)

[2016] AATA 3448

1501916 (Migration) [2016] AATA 3448 (3 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Viet Son Tran

CASE NUMBER:  1501916

DIBP REFERENCE(S):  BCC2014/3227059

MEMBER:Sean Baker

DATE:3 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 03 March 2016 at 4:22pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 February 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 delegate found the applicant had breached condition 8516 which was attached to the applicant’s 573 Higher education sector visa, and found that the factors against cancellation did not outweigh those in favour of cancellation and cancelled the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The applicant provided a copy of the delegate’s decision with his application for review.

3. The applicant appeared before the Tribunal on 2 March 2016  to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. 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

5. 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 attached to the applicant’s visa. This condition specifies that the holder must continue to be a person who would satisfy the criteria for the grant of the visa.

   Does the ground for cancellation exist?

6. The Departmental decision identified that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 9 December 2014. The Departmental decision sets out that on 8 August 2013 the applicant satisfied the primary criteria for the grant of the 573 visa and met cl.573.231 or cl.573.223(1A) to be granted the visa. These clauses require the applicant to be enrolled in a bachelor or master degree course, or enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A. (In these reasons I may refer to such courses as ‘higher education’).

7. According to the delegate’s decision, the departmental systems indicated that the applicant at the time of the NOICC was no longer enrolled in a bachelor or master degree course and was therefore not an eligible higher degree student and was not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A. I discussed this with the applicant at the hearing and he said that she had studied English at CQU, and as per the certificate he provided, had completed this course on 14 March 2014. He then changed to another school, and his enrolment in his Bachelor of Business at CQU was cancelled in June 2014. I asked if he had held enrolment in or a letter of offer for a different higher education course after that date. He said he had not, getting enrolment at Cambridge around November 2014. I noted it appeared that he may have been in breach of condition 8516 as I had explained it to him for this time and he agreed. I noted that the delegate’s decision indicated that the Cambridge enrolment was only obtained after the issue of the NOICC.

8. On the basis of the evidence before it the Tribunal finds that the applicant was not enrolled in a bachelor or master degree course after his enrolment was cancelled by CQU in June 2014 until at least around November 2014 when he enrolled in a Bachelor of Business at Cambridge. On the evidence before the Tribunal, for this period of time he was not an eligible higher degree student, nor was he enrolled in, or the subject of a current offer of enrolment in, a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A. The Tribunal finds that the applicant therefore did not continue to satisfy cl.573.231 or cl.573.223(1A), and therefore did not continue to be a person who would satisfy the criteria for the grant of the visa for this period. The Tribunal finds that the applicant therefore breached condition 8516.

9. 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

10. 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’.

11. The applicant responded to the NOICC by attaching Diploma and Bachelor Confirmation of Enrolments (CoEs) to a short email and did not include any other submissions. The applicant did not provide any submissions prior to the hearing, but at hearing he provided a certificate of attainment fir his English course at CQU, and translated documents which relate to his father’s illness and resignation from his employment.

12. At hearing the applicant said that he had come to Australia on 16 September 2013. I asked what his purpose had been in travelling to and staying in Australia. He said to study. I asked what he had come to study and he said business administration. I asked if he had studied or worked in this field in Vietnam and he said he had worked for the family business. I asked what that was and he said acoustic and electrical wholesale and retail. He said that his family had three shops. I accept that the applicant’s purpose in coming to Australia had been to study a Bachelor of Business and I give this some weight towards the visa not being cancelled.

13. At hearing I discussed his compliance with conditions on his student visa with the applicant. I asked the applicant if he had worked in Australia. He said he had not. I asked him if he had complied with all of the other conditions on his student visa. He said he had. I then noted to him that I had a concern about his attendance in classes. I noted to him that I had information that he had stopped studying his English course at CQU on 4 June 2014, and had then been reported for unsatisfactory attendance on 17 July 2014. I asked him why this was. He said that this was after he had stopped studying there. I noted that he had then studied his certificate III in Business at FIRA, and been reported for unsatisfactory attendance on 28 November 2014. He said that he thought that there was a misunderstanding as he did not know that the school checks attendance when he arrived and finished, and he only checked attendance on arrival. I noted to him that I may take the view that this indicated he was not attending class. I noted that education providers made the attendance and assessment requirements very clear, as these were core requirements for international students holding student visas. He said that when he enrolled they explained the requirements of attendance, and the regulation of the enrolment but did not explain to him the checking of attendance. He saw that other students just signed in at the start of class. I noted that if I did not accept his explanations this may be a significant factor weighing against the visa being reinstated.

14. Later in the hearing I put to him formally under the law the information above that according to the Departmental systems he had been reported twice, as above. He indicated he understood the information. I explained to him that this information may be relevant because it might lead me to conclude that he did not attend classes, and may have breached conditions relating to attendance on his student visa. This may indicate to me that he had not complied with this condition on his visa, which may be a significant factor weighing for the visa being cancelled. He indicated that he understood why the information was relevant to the decision. He did not indicate that he wished to have further time to respond, and said that we had discussed it sufficiently and did not wish to add anything.

15. I have carefully considered the applicant’s responses. I have real concerns about his attendance. Having considered his response, and without clear evidence, I accept his argument that he was reported for unsatisfactory attendance at CQU after he had notified them that he was no longer intending to do the course. It may be that CQU reported him for unsatisfactory attendance prior to his notification to them, but I cannot be certain of this so I place no weight on it. However, I have considered but do not accept his explanation for why he was reported for unsatisfactory attendance at FIRA. I do not accept that, if the provider did indeed check attendance at the beginning and end, or require students to sign in and out, that this would not have been communicated very clearly to students. I do not accept that the applicant could have been under the misapprehension that he only had to sign in. I find that the reporting of the applicant for unsatisfactory attendance was because he did not attend the required percentage of classes, and his provider reported his unsatisfactory attendance as they were required to do so. I find that this is a strong indication that the applicant breached attendance requirements on his student visa and did not comply with conditions on his visa. I give this factor significant weight towards finding that the visa be cancelled.  

16. At hearing I discussed with the applicant the circumstances surrounding the breach. He said that when he was enrolling to do his Bachelor of Business at CQU, his father was sick and could not afford to send money to him, so he had to change to another university with a lower grade. He said this was because his father was an engineer and the main breadwinner of the family, and during time his father was sick he could not earn money to send overseas to the applicant to continue enrolling to do the course. I noted to the applicant that I accepted that his father had sought resignation from his job in October 2014, which had been accepted by the company in November, on the basis of the documents he provided at hearing, and that his resignation appeared to be due to a medical issue. I noted however that I was not convinced that these were circumstances beyond his control which led to the breach, and I considered that he had a range of options he could have pursued, such as requesting his Bachelor enrolment be suspended. He said that he was not aware and the agent who had helped him to get enrolled was in Vietnam, and the applicant had no means to contact the agent. I noted that he had other avenues of potential assistance, and that Universities such as CQU offered a wide range of support services to international students, who were a significant part of their business and so would assist as much as possible. He said that his teachers here did not tell him about that. I noted that I may not accept this as he would have been told of the range of support services when he started at CQU. He said that they had not said anything about helping overseas students when they changed schools.

17. He said that in June 2014 when his father fell sick the applicant understood they would not have enough money to pay for school fees, so he decided to change school. As there was no one to give him advice about what he could do, that is why he just did it himself by changing school and that was one of the reasons why he did not comply with conditions of the student visa. I asked if he had spoken with the Department of Immigration about how this might affect his visa. He said he had not. I asked why and he said that he just thought that maybe it was his personal private financial matters so he did not want to expose these to anybody. I asked if he had spoken to CQU about these things and he said he had not. I noted that CQU may have been able to arrange payment plans or other ways to pay.

18. I asked if, going forward, he had enough money to pay for a Bachelor course now. He said that now his father’s treatment was over so they were just waiting for the financial situation to become more stabilised then he could afford to pay for the fees for the Bachelor. I noted I had some concerns that he said the reason he did not study his Bachelor then was that he could not afford to pay, and if I accepted that his father had resigned then I was not sure the evidence indicated he could afford to pay for a Bachelor course now. The applicant said that he was not quite clear about the paperwork, but when his father sent it to him he said that he was sick for a period of time and when he was well he would go back to work. He said it was like a suspension of work. I noted that the information in the documents he had provided seemed to indicate that his father had resigned, that is that his employment was terminated. I noted that on the information before me it was not clear that the applicant would be able to afford a bachelor now or in the future. He said that his father is working now. I noted that this was not what the documents say. He said that around November 2014 he had enrolled to do a Bachelor at Cambridge.

19. I have considered the circumstances in which the ground of cancellation, that is the breach of condition 8516, occurred. I have considered his enrolment, after the issuing of the NOICC according to the delegate’s decision, in a Diploma and Bachelor at Cambridge, but given that this was obtained only after a significant period of breach I give this evidence very little weight. I have some doubts about whether the breach occurred for the reasons claimed, but even if I accept that he did not enrol because he could not afford to because his father was sick and not working, I do not accept that these were circumstances beyond his control, because as I explored with him he could have pursued a range of options to continue to be enrolled in his Bachelor course at CQU. Even if he felt uncomfortable speaking about personal financial matters, I do not accept that this excuses or explains the breach – he could have discussed or raised the matters without such detail initially, and could have spoken to a range of counsellors or other support staff at his University. Even if I accept his explanation, it leads to a further difficulty for the applicant as I do not believe he has established that he can now afford to pay for his Bachelor or any other higher education course, leading him to not being enrolled in a higher education course. On weighing his responses and my concerns, I find that the breach here did not occur solely for the reasons he claims, and that his evidence does not lead me to have confidence that he would not breach this condition or others in the future. I give this factor some weight towards finding that the visa be cancelled.

20. I raised the question of whether there would be any hardship he or others may face if the visa remained cancelled with the applicant. He did not directly respond, instead discussing the circumstances around his father, as above. I accept that there would be some financial and emotional hardship to the applicant and his family if the visa remains cancelled, but the applicant indicated he had worked before in Vietnam, and the evidence before me  does not indicate that the applicant or his family will suffer serious or significant hardship if the visa remains cancelled. I give this factor little weight towards finding that the visa not be cancelled. 

21. I asked the applicant whether there was any reason he could not return to Vietnam. He said there was not. I asked what he would do if the visa remained cancelled, and after discussing this he said that if his bridging visa was no longer valid, he would go back to Vietnam. I find that there is no indication that Australia’s international obligations would be engaged if the visa were cancelled, and further that, whilst the applicant would be subject to mandatory detention and removal if the visa refusal decision is affirmed, he has indicated that he would depart for his home country and so there is unlikely to be a period of detention or the prospect of indefinite detention on the evidence. I find these factors therefore have no weight in the consideration.

22. I asked the applicant if there were any other relevant matters he wished to raise and he said there were not. On the evidence before me, I find that there is no evidence that any of the other factors identified in policy are relevant to the consideration, and the applicant has not identified any other matters.

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

    DECISION

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

    Sean Baker
    Member