1511865 (Migration)

[2016] AATA 3824

1511865 (Migration) [2016] AATA 3824 (3 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Hoat NGUYEN

CASE NUMBER:  1511865

DIBP REFERENCE(S):  BCC2015/1306205

MEMBER:David McCulloch

DATE:3 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 03 May 2016 at 5:56pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 August 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 26 June 1995.   The visa subject to cancellation was granted on 12 December 2013.  That visa was subject to condition 8202.

3. On 28 July 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 24 July 2014. The applicant provided a written response to the NOICC.  On 27 August 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 29 April 2016 to give evidence and present arguments.

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 from 5 December 2014 until after the issue of the NOICC on 28 July 2015.

11. The Tribunal notes that there is a difference between the NOICC and the decision to cancel as to the date on which the applicant ceased to be enrolled in a registered course. The Provider Registration and International Student Management System (PRISMS), to which the Tribunal has access, indicates that the applicant ceased to be enrolled in a registered course on 5 December 2014 and has not been enrolled in any course since.  In the Tribunal hearing, this information was put to the applicant pursuant to the procedural requirements of 359AA of the Act.  In response, the applicant acknowledged that he had not been enrolled in a registered course since 5 December 2014, or studied since.

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 was not enrolled in a registered course. 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 reasons to 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 unlawful non-citizen and liable to be detained upon cancellation); whether 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. A key issue is whether there are extenuating circumstances beyond the applicant’s control for the breach. The Tribunal notes that there is a period of more than eight months, whilst the applicant held the Student visa, in which he was not enrolled in a registered course. The Tribunal considers that this is an extensive breach.

17. The applicant in response to the NOICC said that he did not receive the NOICC in late June 2015 as he moved to live with his wife and her parents. The applicant indicated that the people who he previously shared with did not inform him about the documents. The applicant indicates that he was enrolled in CQU University and then he changed to Kingsway Institute in Sydney until presently. This was because the applicant’s wife and her parents suggested that he should move to where they lived to more easily be able to communicate. The applicant hopes that his Student visa will not be cancelled and that his Partner visa will still be valid.

18. In the Tribunal hearing, the applicant said that he stopped studying and ceased enrolment because he was busy working, trying to earn money. He also said that he was busy going out with his partner. The Tribunal noted to the applicant that it would not be inclined to think that these were extenuating circumstances beyond his control. Under his Student visa, the key obligation for the applicant was to be studying and that he needed to juggle his work and personal commitments around this obligation. The applicant said that he was young, implying that he did not fully understand the situation.

19. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control for his failure to be enrolled in a registered course for a period of over eight months whilst he held the Student visa.

20. The Tribunal considers other PAM3 factors.

21. In terms of the purpose of the applicant’s travel to and stay in Australia, whilst holding the Student visa, the applicant has been in Australia to study as his primary obligation. In the Tribunal hearing, the applicant indicated that in early 2014 he undertook an English course but ceased studies there because he struggled with the course. Later in the year, the applicant undertook another English course but ceased this because of his work commitments. The applicant has not been enrolled or studied since.

22. The Tribunal put to the applicant pursuant to the procedural requirements of s.359AA of the Act information on Departmental systems which indicates that there is no current restriction on his ability to study on his Bridging visa. This is relevant because whether or not the applicant is currently studying is one factor in determining whether the applicant is a genuine student and intends to study. In response, the applicant indicated that he did not realise he could study currently. The Tribunal asked the applicant if he had made enquiries of his migration agent whether he could study, and he indicated that he had not.

23. The Tribunal asked the applicant what his future study intentions were. The applicant said that when he saved up enough money to pay tuition he will continue his studies with the goal of undertaking an electrical course. The Tribunal noted to the applicant that under his visa he had an obligation to be enrolled in a Higher Education course. The applicant and said he intended to study a business management degree. The Tribunal noted that the applicant had just indicated that he planned to study an electrical course. The applicant then indicated that he intended to study a business management degree relating to electrical issues.

24. The Tribunal is prepared to accept that the applicant engaged in study pursuant to his obligations up until early December 2014. The Tribunal is not satisfied that the applicant has been meeting the purpose of his stay in Australia from that point in time up until the cancellation of the Student visa in August 2015.

25. Whilst the applicant did not have an obligation to study following the cancellation of the student visa, the conduct of the applicant from that point, given that there is no restriction on his ability to study, is relevant as to whether the applicant is a genuine student. Although this is not the ground on which the visa was cancelled, the Tribunal considers it a relevant factor. Whilst the Tribunal is prepared to accept that the applicant may have thought he was not permitted to study following the cancellation of the Student visa, it is clear also that he made no enquiries of his migration agent. The Tribunal considers that the applicant had little interest in progressing with his studies given his failure to ask the simple question of his migration agent whether he could study not. That is not inconsistent with the applicant’s lack of attention to his study obligations from early December 2014 and him prioritising study ahead of personal and work issues.

26. In terms of the applicant’s evidence as to his future plans, the Tribunal finds the applicant’s evidence in hearing on this issue inconsistent and unsatisfactory. The Tribunal considers the applicant has no intention of studying a higher education sector course as required by his 573 visa and considers that he manufactured the claim that he intends to study a business management degree linked in some way with electrical issues.  The Tribunal considers therefore that the applicant would also be in breach of visa condition 8516 and cl.573.231 which requires him to be enrolled in, or subject to an offer of enrolment, in a principal course, as required by his visa subclass.

27. The Tribunal has no evidence that the applicant has failed to comply with other visa conditions.

28. The Tribunal does not consider that the applicant has been acting as a genuine student since early December 2014, which casts significant doubt on the applicant’s future intentions, particularly relating to enrolment in or study of a course as required by his particular visa.

29. In terms of compelling reasons for the applicant to remain in Australia or hardship that he or his family will face if the visa remains cancelled, the applicant referred to his desire to continue his English studies and then undertake an electrical course. He also indicated that he will be reprimanded by his family if he does not progress with his studies in Australia. Although he did not mention this as an issue in response to this question, the applicant indicated that he and his partner are married. His partner is an Australian citizen and the applicant has applied for a Partner visa. If the applicant is forced to return to Vietnam, this might be a hardship to the applicant. The Tribunal considers, however, that if the relationship is genuine then the Partner visa is likely to be granted, meaning that the applicant will be able to stay in Australia even if the Student visa remains cancelled.  

30. The Tribunal has no evidence that the applicant has engaged in an uncooperative manner towards the Department. The applicant indicated that there no persons whose visas would be cancelled consequential upon the cancellation of the applicant’s visa. The applicant indicated that there are no children in Australia whose interests are affected in relation to the visa.

31. When the applicant was asked whether he fears persecution or significant harm if he returned to Vietnam he indicated that he will be reprimanded by his parents for not progressing with his studies. The Tribunal is not satisfied that this would constitute persecution or significant harm enlivening Australia’s non-refoulement obligations.

32. The Tribunal accepts that if the Student visa remains cancelled the applicant could be an unlawful non-citizen and subject to immigration detention. However, the Tribunal is satisfied that the applicant would be in a position to apply for a Bridging visa to make his status lawful.

33. The Tribunal is not satisfied that there are any other relevant factors raised by the evidence.

34. In summary, the applicant has failed to be enrolled in a registered course for a period of more than eight months while holding the Student visa. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that justify the breach. The Tribunal draws adverse inference from the failure of the applicant to enrol or study following early December 2014, including past the cancellation of the Student visa, given that there is no limitation on the applicant’s ability to study. The Tribunal considers that the applicant has made no effort to explore his ability to study. The Tribunal finds as inconsistent the applicant’s evidence as to his future study plans in Australia and does not think that the applicant intends on a course of study consistent with the obligations under his particular Student visa. The Tribunal accepts that there may be some degree of hardship to the applicant if he is not able to continue his studies, particularly in terms of his family being upset. It considers that the impact on the applicant will be less significant given his lack of commitment to his studies. The fact of the applicant being married to an Australian citizen would constitute a hardship if the applicant were forced to return to Vietnam creating issues as to the wife having to relocate to Vietnam, or the couple being split up. However, given that an application for a Partner visa is on foot, the Tribunal considers that if the relationship is genuine it most likely that that visa would be granted and the applicant would be able to stay in Australia.

35. Weighing up all issues, particularly the extent of the breach and the fact that there are not extenuating circumstances beyond the applicant’s control for the breach, against the hardship the applicant or his family will face and other discretionary factors in his favour, the Tribunal considers that the preferable view is that the visa remain cancelled.

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

    DECISION

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