1822546 (Migration)

[2019] AATA 4201

1822546 (Migration) [2019] AATA 4201 (18 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822546

MEMBER:T. Quinn

DATE:18 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 18 June 2019 at 2:21pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course for ten months – did not take reasonable steps to re-enrol – lengthy stay onshore – concerns about true intentions – emotional issues – family illness – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 338, 347
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 July 2018 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the current visa’) under section 116 of the Migration Act 1958 (‘the Act’).

2. The applicant has been in Australia since July 2012 on student (and associated bridging) visas and was granted the current visa in early 2017.  The applicant is from Vietnam and came to Australia with the intention to study and obtain skills in Australia in order to improve her employment prospects in her home country.[1]

   [1]           See delegate’s decision and pages 20-21 of the Department File being the applicant’s ‘Personal Statement’.

3. On 30 July 2018, the delegate cancelled the current visa on the basis that the applicant had failed to comply with a condition of the current visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not been enrolled in a registered course of study[2] since  [September] 2017.  A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

   [2] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).

4. On 4 August 2018, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.

5. The applicant appeared before the Tribunal on 17 June 2019 to give evidence and present arguments.  The Tribunal also received oral evidence from the applicant’s housemate, Mr [A].

6. The applicant was assisted in relation to the review by their registered migration agent; however, the migration agent was not present for the applicant’s hearing.

7. The Tribunal hearing was arranged with an interpreter in the Vietnamese and English languages.  On the day of the hearing, the applicant indicated she wished to speak in English but would use the services of the interpreter if she felt inclined.  The Tribunal made it clear to the applicant that if at any time she did not understand or would like to use the services of the interpreter, she must indicate that to the Tribunal immediately and the interpreter remained in the hearing room, available, for the duration of the hearing.

8. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

9. The Tribunal has had regard to all the information before it, including the Department File, all information and evidence provided by the applicant and her witness to the Tribunal, including material provided on the day of and following hearing.

10. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    STATUTORY FRAMEWORK

11. The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.

12. Under section 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 subsection 116(1)(b) of the Act. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

13. A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:

    a.be enrolled in a registered course, or in limited cases,  a full time course of study or training: 8202(1) and (2);

    b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and

    c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

15. The applicant was enrolled in and commenced a Bachelor of [Subject 1] at [College 1] in early 2017.  The applicant’s confirmation of enrolment (‘COE’) was cancelled [in] September 2017 and she was not enrolled in a full time registered course of study from that date until her visa was cancelled on 30 July 2018. 

16. The applicant has at all times acknowledged and accepted that there are grounds for cancellation.[3]

    [3]           See delegate’s decision, submissions from the applicant and applicant’s evidence at hearing.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion to cancel the visa

18. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

19. The applicant provided a document titled ‘Personal Statement’ to the Department in response to the notice to cancel visa (‘the Personal Statement’).[4]  This document indicated that the applicant commenced and completed High School in Australia between July [Year 1] and the end of [Year 2] followed by a Diploma of [Subject 2] from March 2015 to January 2017 and that she commenced her Bachelor of [Subject 1] shortly thereafter.  Her evidence at hearing was consistent with the study history, she indicated she successfully completed her first semester of the Bachelor of [Subject 1] but in August 2017 her mother was diagnosed with [a medical illness].

    [4]         See pages 20-21 of the Department File.

20. The applicant gave evidence that she wishes to complete her Bachelor of [Subject 1] in Australia and then return to Vietnam to seek employment there.

21. The applicant stated that if she cannot remain in Australia she will ‘not get much salary and too much time spent here but I couldn’t get a university degree, the family will not be hoping for this’.  The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this constitutes a compelling need to remain in Australia.  Further, the Tribunal notes that the applicant has received a high school certificate and Diploma in [Subject 2] in Australia and will have options to complete tertiary studies in Vietnam.

22. The Tribunal accepts the applicant does wish to study but also notes that the nature of the student visa programme is necessarily temporary and after [a number of] years onshore, the Tribunal has concerns about the applicant’s true intentions.  The Tribunal considers the applicant does not have any compelling need to remain in Australia as she could study a Bachelor of [Subject 1] in her home country.  The Tribunal considers the evidence in favour of cancelling the applicant’s visa is greater than the evidence against cancelling the applicant’s visa in the matters described in paragraphs 19-22.

    Circumstances in which ground of cancellation arose

23. The applicant provided a statutory declaration shortly prior to her hearing and gave evidence at hearing which went beyond the information provided in the Personal Statement.  Her more recent evidence was that:

    a.in 2014 she underwent a [operation].  She provided an invoice from a medical practice which appeared to support this;

    b.when she returned to visit her family in early 2017, they became aware of her [situation] and disapproved, she stated that ‘they were blaming me very single day’ and she felt ashamed;

    c.for the second half of her trip home and after she visited her family in early 2017 they refused to speak to her (her evidence in this regard was inconsistent, however, and the Tribunal details this below);

    d.she struggled considerably emotionally and in her application to her studies when she returned to Australia in February 2017;

    e.when she found out her mother had [a medical illness] in August 2017, the combination of the events of early 2017 and this news affected her such that she lost motivation to study.

24. The applicant’s evidence was that after the incident with her family in early 2017, she was suffering and had no motivation.  She said her family would not speak to her.  However, she had earlier given evidence that she speaks to her family 2-3 times per week via video call on [social media].  When the Tribunal asked at what point the applicant’s family recommenced speaking to her, she stated that it was when her visa was cancelled.  The Tribunal enquired about how she found out about her mother’s sickness as this was nearly 12 months before the visa cancelled, the applicant stated her [sibling] told her.  However, her Personal Statement indicated that it was her father who told her that her mother was unwell.  The applicant’s evidence about her dealings with her family from 2017 to present was inconsistent and difficult to follow.  This raised concerns for the Tribunal about the reliability of the applicant’s evidence.

25. The applicant provided a medical document which was interpreted to read ‘early diagnosis of [medical condition]’ dated August 2017.  This appears to be consistent with the applicant’s submission that her mother was suffering from [a medical condition].  The applicant gave evidence that her mother had to attend hospital for approximately two months to receive treatment as an outpatient and she is now healthy.  The applicant stated that after approximately two months her mother no longer required treatment and is ‘normal’.  During the period in which she received treatment, her mother continued to work three days per week and then returned to full time work after that.  The applicant stated that upon being told of her mother’s health issues in August 2017, she could not think about much and was struggling emotionally.  The Tribunal enquired as to whether she sought counselling or attended upon her General Practitioner at any stage in relation to her mental or emotional health and the applicant said that she did not because it was too expensive.  The Tribunal enquired as to whether the applicant spoke to anyone at the university about her problems and she indicated that she did not.  The applicant stated she did not seek deferral of her course because she did not think of it.

26. Significantly, Mr [A]’s evidence was that after the applicant returned from her trip to Vietnam in early 2017, she locked herself in her room, would not eat and refused to speak to anyone.  Mr [A] indicated that this went on for approximately one to two months and that he had to wait for her to leave her room to go to the restroom in order to try to talk to her and help her.  Mr [A] stated that after approximately one to two months, the applicant she began eating and talked to Mr [A] about her problems.  Following that, Mr [A]’s evidence was that after approximately three to four months, the applicant improved and stopped locking herself in her room.  He stated that they go shopping, chat and go to music concerts together.  When the Tribunal asked about whether the applicant had spoken to Mr [A] about her mother he said ‘yes of course because she has shame about her family’ and his response referred only to the [specific] issue.  The Tribunal asked specifically if the applicant had discussed her mother’s health with Mr [A] and Mr [A] said that the applicant’s mother ‘had some mental health issues after that because she [the applicant] had shamed her mother because maybe her mother had to think a lot’.  Mr [A] appeared to be unaware of the applicant’s mother’s [medical] diagnosis or any impact of it on the applicant.

27. The timing in relation to the evidence is significant.  The applicant indicated that she passed all four subjects of her first semester of her Bachelor of [Subject 1] – this semester took place in the first half of 2017.  However, Mr [A]’s evidence was that the applicant would not leave her room and was going through severe emotional difficulty for two to four months after her return from Vietnam in February 2017.  Mr [A]’s evidence would seem to indicate that by, at the latest, July 2017, the applicant was functioning normally.  The Tribunal notes that this pre-dates the applicant’s cancellation of enrolment which occurred in September 2017.  In addition, it would appear that, despite her emotional difficulties and locking herself in her room, the applicant was still able to complete her first semester of her Bachelor of [Subject 1] in the first half of 2017.  The Tribunal is troubled by the evidence, finds the evidence taken as a whole is inconsistent and insufficient to explain the applicant’s failure to engage with her studies in the second semester of 2017.

28. The Tribunal enquired about whether the applicant attempted to re-enrol at any point and specifically why the applicant did not attempt to re-enrol after her mother’s health had improved in late 2017.  The applicant stated it was too late because her confirmation of enrolment had been cancelled.  The Tribunal asked whether she tried to enrol with a different course provider and the applicant stated she tried one course provider in the city and they did not accept her.  The Tribunal asked why she did not try other course providers and the applicant said that because one course provider did not accept she thought the others would not accept her.  However, when asked what she will do if she is able to obtain a visa, she said she would enrol with  [College 2].  The Tribunal asked why the applicant did not try this course provider prior to her visa being cancelled and why this course provider would accept her now and the applicant had difficulty answering this question.  She simply said ‘if I got a visa now I think they will accept me’.  The Tribunal was not persuaded by the applicant’s evidence and finds it difficult to accept that a person who genuinely wishes to study would only approach one course provider to obtain reenrolment.  This raises questions for the Tribunal about the applicant’s true intentions in residing in Australia.

29. The Tribunal is troubled by the applicant’s evidence as a whole.  Despite the applicant’s mental or emotional health problems, it would seem that if in her most difficult period being early 2017 she had capacity to complete the first semester of her Bachelor of [Subject 1] then it is reasonable to assume that she also had capacity to make a request for a deferral of her course and/or make a proper attempt to re-enrol with a different course provider.

30. The Tribunal accepts that the applicant has had emotional turmoil in early 2017 and that there may also have been some difficulties upon hearing of her mother’s health issues in August 2017.  However, her mother’s health issues only spanned a two month period and as such, by approximately October 2017, it would seem the applicant would have had capacity to take steps to ensure she was complying with her visa conditions.  She did not.  On her own evidence, she did not seek counselling or medical help or a deferral of her course.  Further, there is no medical evidence supporting the timing or symptoms and the impact of those symptoms in 2017 in order that the Tribunal can properly assess the full impact of the applicant’s emotional difficulties on her capacity to study.  Indeed, Mr [A]’s evidence supports a conclusion that by July 2017, the applicant ought to have been able to properly engage with her studies.  Given the applicant was able to complete her first semester in 2017, the Tribunal has difficulty accepting that the applicant could not have engaged with her studies in some way or taken the necessary steps to obtain course deferral or taken the necessary steps to ensure she was able to obtain a new COE in compliance with the conditions of the current visa. 

31. In addition, even if the applicant’s emotional difficulties were severe enough to impact her ability to study in early 2017; the Tribunal considers that the applicant’s evidence indicates that she was well enough to have re-engaged with study from late 2017 when her mother’s health improved.  The Tribunal also notes that the option to return to Vietnam to avoid breaching her visa conditions was open to the applicant at all times (albeit a difficult situation given her evidence about some of her family difficulties).

32. The Tribunal empathises with the applicant’s personal circumstances in 2017, including the fact that the [operation] and her mother’s health were out of the applicant’s control.  The Tribunal acknowledges these issues must have caused emotional stress for the applicant and gives weight against cancelling the applicant’s visa in this regard.  However, the applicant’s visa was not cancelled until July 2018 and the Tribunal considers that from at least late-2017, the applicant could have taken steps to ensure she was meeting the conditions of the current visa.

    Extent of compliance with visa conditions

33. The Tribunal notes the applicant’s evidence that she has otherwise complied with all previous student visa conditions.  However, the breach of the condition associated with the current visa is extensive, being ten months.  The Tribunal considers this a significant breach and gives weight in favour of cancelling the applicant’s visa in this regard.

    The degree of hardship that may be caused to the visa holder and any family members

34. When asked about this factor, the applicant stated that if she cannot remain in Australia she will ‘not get much salary and too much time spent here but I couldn’t get a university degree, the family will not be hoping for this’. 

35. The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

1. The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.

2. The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as non-enrolment.  Whilst appreciating the hardship the applicant and her family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

   The visa holder’s past and present behaviour towards the Department

3. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight against cancelling the applicant’s visa.

   Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act

4. This is not relevant to the applicant.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

5. If the current visa is cancelled, this will result in the following:

   a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

   b.the applicant will have limited options to apply for further visas in Australia;

   c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed.  The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.

   I give little weight to this consideration in favour of the applicant because:

   ·these are the intended consequences of the legislation when a visa is cancelled under these grounds;

   ·it reflects the seriousness with which the Department takes this type of cancellation ground;

   ·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.

   Australia’s international obligations

6. There is nothing before the Tribunal to suggest that the cancellation of the current visa would breach any international obligations.  The Tribunal places no weight on this in favour of or against the applicant.

   Any other relevant matters

7. When asked how she spent her spare time since August 2017 (as she cannot work or study on her bridging visa), the applicant stated she studies English and Chinese through [social media] in order to help her future in Vietnam.  The Tribunal commends the applicant for this.

   CONCLUSION

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

   DECISION

9. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

   T. Quinn
   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.