1509485 (Migration)

[2016] AATA 3351

1509485 (Migration) [2016] AATA 3351 (25 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HAN TUNG LAM NGUYEN

CASE NUMBER:  1509485

DIBP REFERENCE(S):  BCC2015/1006124

MEMBER:David McCulloch

DATE:25 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 25 February 2016 at 12:57pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 July 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a national of Vietnam born on 22 January 1993.  The latest Student visa he was granted, on 12 March 2013, was a Student Temporary (class TU) Higher Education Sector (subclass 573). That visa was subject to condition 8202.

3. On 30 June 2015, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 27 March 2014. The applicant provided no response to the NOICC.  On 13 July 2015, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

4. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 24 February 2016 to give evidence and present arguments. The applicant was represented by his registered migration agent, who did not attend the hearing.

6. 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

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

   Did the applicant comply with Condition 8202?

8. 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 registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

10. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 27 March 2014.

11. In the hearing, the applicant acknowledged that he ceased to be enrolled in a registered course of study from 27 March 2014. The Tribunal noted that Departmental systems indicated that the next enrolment by the applicant was on 13 July 2015 (a Bachelor of Business). The applicant agreed that he had not been enrolled during these periods. The applicant also agreed that he had ceased to be enrolled in a registered course from 18 July 2013 (in a Diploma of Commerce from which he withdrew) until the commencement of the Bachelor of Commerce on 24 February 2014.

12. There is nothing before the Tribunal to suggest that the applicant was a holder of a subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

13. On the evidence before the Tribunal, the applicant has not been enrolled in a registered course on at least two occasions, for lengthy periods. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

15. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling need to travel or remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (ie. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulment obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non refoulement obligations; and any other relevant matters.

16. In terms of the applicant’s travel to and stay in Australia, while in Australia on a Student visa, the purpose of the applicant’s stay here has been to study.  The Tribunal is satisfied that from February 2011 until December 2012 the applicant met the purpose of his stay in Australia, during which time he completed a language course and secondary years 10 to 12. The applicant also studied for five months of a Diploma of Commerce commencing on 26 February 2013 until he withdrew in July 2013, and the Tribunal accepts that the applicant was meeting the purpose of his stay in Australia for this five month period. However, from July 2013 until July 2015 the applicant has undertaken almost no study nor, other than for one month of this period, been enrolled in a registered course. The only period of study and enrolment between July 2013 and July 2015 was from the commencement of the Bachelor of Commerce on 24 February 2014 until he withdrew from that course on 27 March 2014. Thus, for a period of approximately 23 months the applicant has not been studying or enrolled whilst holding a Student visa and thus not meeting the purpose of his stay in Australia.

17. Compelling need for the applicant to stay in Australia is canvassed in the discussion of hardship to the applicant.

18. The Tribunal has no evidence that the applicant has failed to abide by other visa conditions.

19. The Tribunal explored with the applicant in the hearing the hardship that he will suffer if the visa remains cancelled. The applicant will suffer hardship because he will be unable to complete the Bachelor of Business that he commenced on 13 July 2015. The applicant provided a statement from the education provider confirming that he is a full-time student in this course. He indicated to the Tribunal that he did not bring with him to the hearing evidence of his course progress. The applicant indicated that he has been in Australia since high school and reintegrating back to Vietnam will be difficult. He indicated that he had friends in Sydney, and a Vietnamese girlfriend who is studying here. Leaving them and Australia will be difficult.

20. The Tribunal explored with the applicant the reasons for the breach, and any extenuating circumstances. The applicant indicated that his failure to enrol or study was because he was upset that both his parents had divorced and remarried, and that his mother had a new child.  He also indicated that he was upset when his girlfriend, who was from Vietnam but studying in the US, broke up with him in August 2014. The Tribunal asked the applicant whether he received medical support or counselling for these issues. He said that he saw a psychologist on one occasion on a trip back to Vietnam in 2014. That was the only assistance he sought.

21. The Tribunal asked the applicant if he was aware of his obligation to be enrolled in a registered course. The applicant indicated that he was. The Tribunal pointed out to the applicant that the appropriate course for him to take, if he was unable to study due to emotional issues, would have been to be enrolled in a course and to seek to defer his studies.

22. The Tribunal asked the applicant if he had been working in Australia. The applicant indicated that he was working in a sushi train restaurant from November 2014. The Tribunal asked the applicant how was he was in a position to work, but not study. The applicant did not respond to this question.

23. The Tribunal has no evidence that the applicant has behaved in an adverse way towards the Department. The Tribunal has no evidence that there are persons in Australia whose visas may be cancelled consequential on the cancellation of the applicant’s visa.  While the applicant may become an unlawful noncitizen if the visa remains cancelled, and be subject to immigration detention, the Tribunal is satisfied that the applicant would be in a position to apply for, and likely be granted, a bridging visa to make his status lawful.

24. The applicant indicated that there are no children whose interests would be affected by the cancellation. The applicant indicated that he did not face serious or significant harm upon returning to Vietnam, and therefore the Tribunal is not satisfied that Australia’s non-refoulement obligations would be enlivened if the visa is to remain cancelled.

25. The Tribunal is not satisfied that there are any other relevant factors either in PAM3 Departmental guidelines or more generally provided by the applicant.

26. The Tribunal assesses the exercise of its discretion. The Tribunal is not satisfied that difficulties the applicant faced due to his parents divorcing and remarrying, and his mother having another child, or difficulties from the breakup of a relationship, constitute extenuating circumstances or matters outside of the applicant’s control such as to justify his failure to be enrolled in a registered course for a period of almost 2 years. This is a very significant breach, in terms of the length of time of the breach. Whilst the Tribunal accepts that the circumstances described by the applicant relating to his parents and a relationship break up would have been upsetting, they do not justify the breach, in the Tribunal’s view.

27. The Tribunal questions the extent of the impact of these events on the applicant, given that he sought counselling or medical assistance on only one occasion. The Tribunal would think that if these issues were having such an extreme impact such as to cause the applicant not to be able to study for this length of time, when he had an obligation to study, he would have been receiving ongoing treatment. Further, the difficulties claimed to have been suffered by the applicant provided no impediment to him working, from late 2014, and the applicant did not explain to the Tribunal’s satisfaction why he was in a position to work but not study. Further, the appropriate course if the applicant was unable to study due to emotional or psychological issues would have been to have maintained enrolment in a registered course and to have sought a deferment.

28. For all of these reasons, the Tribunal is not satisfied that the reasons advanced by the applicant for his failure to be enrolled are extenuating or out of his control such as to justify the failure to study or enrol for the 23 month period.

29. The Tribunal accepts that the applicant has been enrolled and is studying a Bachelor of Business since 13 July 2015.  Although the applicant provided no evidence, the Tribunal assumes, for the purpose of this decision, that the applicant has been making satisfactory progress in this course. The Tribunal accepts that there will be significant hardship to the applicant in not being able to complete this course. It accepts that there will be hardship in the applicant having to return to Vietnam given that the applicant has been here since his high school years. It accepts that there will be hardship in being separated from his friends and his girlfriend in Sydney.

30. However, the Tribunal is not satisfied that the hardship that the applicant would face, or any other discretionary factors in his favour, outweigh the failure of the applicant to be enrolled or study for a period of almost two years in circumstances that the Tribunal has found are not out of the applicant’s control or extenuating. The applicant has failed to meet a core obligation of his Student visa and the purpose of him being in Australia for a very significant period. The Tribunal forms this view notwithstanding that the applicant is currently studying, and that he studied for two years from 2011. The Tribunal considers that the Student visa should remain cancelled.

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

    DECISION

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

    David McCulloch
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.