1603691 (Migration)

[2016] AATA 4603

1603691 (Migration) [2016] AATA 4603 (28 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr DUY HIEU NGO

CASE NUMBER:  1603691

DIBP REFERENCE(S):  BCC2015/2548033

MEMBER:Rachel Westaway

DATE:28 October 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 28 October 2016 at 4:37pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 March 2016 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, Mr Ngo is a citizen of Vietnam. He was granted a visa on 10 January 2014 to study in Australia. On 9 November 2015 Mr Ngo was sent a Notice of Intention to Cancel later inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. It appeared that the applicant was not enrolled in a registered course. The applicant was provided with an opportunity to respond. He responded outside of the requested time frame. He did not dispute the grounds for cancellation.  The delegate found that the applicant did not demonstrate a genuine intent to complete his studies in a registered course. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course.

3. Mr Ngo applied to the Administrative Appeals Tribunal for review of the decision and supplied a copy of the delegate’s decision. The applicant was invited to appear before the Tribunal on 21 October 2016 to give evidence and present arguments. The Applicant was notified by email on the email address provided by the applicant within the required time frame. The email explained the Tribunal was unable to make a favourable decision on the information before it and invited to the applicant to attend a hearing to provide further evidence to support his claims. The Tribunal sent the applicant two SMS reminders to his nominated mobile number on 14 October 2016 and 20 October 2016. The applicant did not respond to the hearing invitation and has not engaged with the Tribunal or provided a written submission. The applicant did not request a different hearing date or provide a reason for not attending.

4. The applicant was afforded every opportunity to engage with the review process. The Tribunal has proceeded to make a decision on the information at hand.

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. 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?

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

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

9. The applicant provided a submission to the delegate on 23 December 2015, 4 January 2016 and 21 January 2016. The applicant did not dispute the grounds for cancellation. However he provided a background to his circumstances. It is detailed below:

   In a response dated 23 December 2015:
   Dear Geralda,

   I am writing this letter to you to explain my situation.
   After studying English at Victoria University for half a year, I found myself loosing interest in studying English and other aspects in life. I had no motivation to do anything including studying. I missed my family back home a lots and I was struggling to adapt to a new life in Australia. In terms of studying, I was a bit behind the level I was supposed to.
    In October 2014, I dropped out of the English course when it was close to the finish date because I felt terribly had about myself. While other friends were doing well and moved on to new study pathway, I was still stuck with learning English. I did not know anyone to turn to and talk about my problems. Unfortunately, at that moment, I was not aware that I should go to doctor for consultation or treatment when I was suffering from depression.
   In October 2015, I realised that I should go back to study because am on a student visa, and I have promised my parents that I would be able to study and achieve my desire of gaining a qualification in Australia.
   I have decided to enrol again In English, Certificate 4, Diploma and Bachelor of Business at Cambridge International College. I was advised that I should follow a steady approach, step by step. I have enclosed new COEs with this email. Having discussed my situation with friends and consultants, I am now aware that with determination and hard work. I should be able to achieve a good result and move on to studying at Bachelor level, I am now actually enjoying learning English at the College and making now friends,
   I am shocked when I see your email about the intention to cancel my visa because I really wish to continue studying in this beautiful country and achieve my study goals. I understand that I did not comply with my visa condition for a while but I still hope that it’s not too late to go back to studying.
   I hope that you will support my decision to study again and let me stay on my current visa. Thank you very much for your consideration

   NGO Duy Hieu

   In a further response dated 4 January 2016 Mr NGO stated:
   Dear Geralda„

   At the beginning of 2015, there were many things that happened to me at the same time. These incidents have affected me hardly and I could not focus on studying.
   I'd like to ask you to spare me more time to prepare some more documents to send to you.
   Thank you for your understanding.

   Ngo Duy Hieu

   In a 3rd response received from Mr NGO on 21 January 2016 he stated:
   Dear Geralda,

   I understand that I was given very short time to explain my situation and to send you some documents to show you the reasons why I was not being able to get hack to study at the beginning of 2015.
   I took me a few weeks to contact my family and get these document translated and send to you now.
   There was an incident happened to my family back home. In early January 2015, my grandmother got an accident and she had to attend hospital and went through a big operation on her hip. The whole procedure has affected me and my family emotionally and financially. My grandmother is very old now but had to go through many treatment and physiotherapy after that. Fortunately, after months of painful and costly treatment, my grandmother has recovered and my family can arrange some money to send to me so that I can pay tuition fee.  I don't know how to describe this but I feel lucky that things have got better for my family and I can go back to studying.
   I have attached all these documents hereby for you to consider.
   I really hope that you can give me a second chance to study again.
   Thank you and God you

   Ngo Duy Hiou

10. As a part of his submission the applicant provided the following documents:

    ·     Mr NGO also included the following documents for considerations:

    ·     Application for Certification (statutory declaration) from a Dinh Phu NGO, who states he is the visa holders father.

    ·      An extract of Birth Certificate for NGO DINH PHU

    ·      A testimonial from a Dr Duc Vien NGUYEN from STO hospital in Ho Chi Minh City

    ·       An extract of a hospital discharge for a NIGUYEN THI HUYEN from STO Hospital, 16.2.2015

    ·     An undated "Permit for leaving Hospital" from STO Hospital Phuong Deng

    ·     A hospital fee document for a NGUYEN TH1 HUYEN

11. The delegate gave limited weight to the applicant’s personal circumstances noting that there was no evidence to suggest that the applicant did not seek to remedy the situation nor did he provide any further details about the circumstances he faced. However the delegate considered that from the 10 November 2014 when the applicant was reported for non-commencement of studies until 16 November 2015, this significant period of no enrolment outweighed the personal information provided by the applicant.

12. The delegate also noted that the applicant only re-enrolled in a new course after he received the Notice of Intention to Consider Cancellation (NOICC).

13. The Tribunal did not have an opportunity to discuss the applicant’s study in Australia, his personal circumstances and how he sought to remedy these or why he was unable to.

14. Given the fact that the applicant has not disputed the non-enrolment and the supporting PRISMS record as detailed in the delegate’s decision, the applicant was not enrolled in a registered course from October 2014 to November 2015. 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

15. 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.

16. 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).

17. The Tribunal has not had the opportunity to discuss with the applicant his study history in Australia. The Tribunal has significant concerns that the applicant had not studied or been enrolled in a registered course of study in Australia for two years despite this being the reason why he was in Australia. The Tribunal views this significant breach as indicative of the applicant not being a genuine student.

18. The applicant stated in his emails to the Department he lacked motivation, he missed his family, he was a bit behind academically and he felt he had no one to turn to. He stated that he did not realise he should go to a doctor and stated he believed he was suffering depression.

19. He stated he had many things happen to him which prevented him from focussing on his studies. He stated he had family issues and his grandmother was ill and the cost of her treatment meant his family could not support him financially.

20. He provided some documents to support these claims.

21. The Tribunal has considered the applicant’s study history. The Tribunal is extremely concerned that the applicant has studied approximately 6 months in Australia since arriving in 5 February 2014, despite being in Australia to gain qualifications. He stopped studying in October 2014, for personal and financial reasons, yet has not provided any information that he sought assistance from a doctor or his education provider to resolve this situation.

22. The Tribunal considers the applicant’s failure to seek help from his education provider or a doctor or defer his course and return to Vietnam is a significant matter. The Tribunal does not consider that the applicant’s claimed lack of motivation and undiagnosed depression is significant enough to be without enrolment in a course for one year.

23. The Tribunal does not accept that the applicant’s explanation that he did not know he should seek assistance from a doctor to be sufficient.

24. The Tribunal notes that the applicant provided limited evidence to support his claims. The leaving certificate from hospital for his grandmother was dated 16 February 2015. The Tribunal notes the applicant claims this was one issue which impacted on him psychologically. However, the applicant remained in Australia without enrolling in a registered course until 16 November 2015. The Tribunal does not accept that such an incident would prevent the applicant enrolling in a course for such a significant period of time.

25. The applicant provided a letter from his mother stating she owed a large sum of money for her mother’s hospital fees. Whilst the Tribunal is prepared to accept that the applicant’s mother did incur this unexpected cost, there was nothing preventing the applicant from withdrawing from the course and returning to Vietnam. Furthermore there was no evidence to support the claim that these records did in fact belong to the applicant’s grandmother. In any event, the Tribunal does not consider this as a sufficient excuse for such a substantial period of non-compliance.

26. The Tribunal considers that the enrolment of 16 November 2015 was entered into solely for the purpose of seeking to meet the visa requirements, and not for any genuine study reason. Had the applicant an interest in studying in Australia he would have enrolled in a registered course well before being notified of his breach of condition by the Department. The Tribunal does not consider the applicant to be a genuine student in Australia.

27. The Tribunal has considered the applicant’s personal circumstances as a young man returning to Vietnam. It notes that the applicant stated to the Department that he is now enjoying studying and would like to continue. The applicant has made no submissions that the Tribunal can rely upon and did not attend the scheduled hearing to explain what the consequences may be for him returning to Vietnam.  The Tribunal notes that the applicant’s family appear to be aware of the issue given his mother has prepared a statement detailing her financial difficulties which she claims impacted on the applicant’s ability to study. The Tribunal places limited weight on this consideration.

28. The applicant has mentioned friends in Australia but has not detailed any reasons why his connections to Australia should be considered in these circumstances.  The Tribunal is of the view that no-one else is affected by the cancellation of the visa in Australia. The Tribunal places limited weight on this aspect of the applicant’s circumstances.

29. No international issues were raised as being relevant in the applicant’s circumstances. The Tribunal has also taken into account that the applicant would face a 3 year exclusion from Australia arising from the cancellation of his visa.

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 Class TU visa.

    Rachel Westaway
    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.