1919931 (Migration)

[2020] AATA 4459

1919931 (Migration) [2020] AATA 4459 (1 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1919931

MEMBER:Michael Biviano

DATE:1 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 1 July 2020 at 4:20pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – gap in studies – medical condition – applicant changed courses – limited academic progress – financial hardship – applicant established his own business – permanent partner visa application – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 116, 140, 359
Migration Regulations 1994, Schedule 8, Conditions 8202, 8516

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 16 July 2019 made by a delegate of the Minister for Home Affairs 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 delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study from 29 January 2018 to 14 June 2019 and he was not compliant with condition 8202 of his visa.

3. The delegate went on to consider the factors in favour of cancellation outweighed those against cancellation. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 24 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [witness name]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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 not 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 decision record of the delegate of the Department of Home Affairs dated 16 July 2019, confirms that the Department cancelled the applicant’s Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 5 February 2015 and the reasons for the cancellation of the visa (Decision Record).

11. The Decision Record was not provided to the Tribunal by the applicant.

12. In accordance with its obligations pursuant to s.359A of the Act, on 9 June 2020 the Tribunal sent a letter to the applicant enclosing a copy of the Decision Record, explaining to the applicant the relevance of the record to the review and the consequences of it relying on the information contained in the record.

13. On 23 June 2020, the applicant in response to the request for information provided two statutory declarations, one from the applicant, the other from his partner [named].

14. The applicant gave evidence that he had previously studied for one year in university in Ho Chi Minh City in the Bachelor of [named subject].

15. The applicant arrived in Australia [in] February 2015 pursuant to a student visa class TU-573 to study [specified English courses] at [College 1] and [College 2] and a Bachelor of [Subject 1] at [College 3].

16. He gave evidence that he studied and completed two [qualifications] in English, being [specified English courses] at [College 1]. The Decision Record referring to the PRISMS records confirms that the applicant completed [these specified English courses] courses.

17. He had initially enrolled in the [Subject 1] in July 2015, but because he had failed one subject in the [specified English] courses, he was required to defer those studies to February 2016.

18. The applicant gave evidence that he commenced studying the bachelor’s degree in February 2016. However, in or around April 2016, he contracted [Medical condition 1] and ceased studies in mid-2016. He claims that the treatment had a side effect that he felt depressed and was concerned that by going to school he could pass on the illness to a fellow student or a [client] when they were doing their practical experience. He sought to study in second semester a lighter load. He submitted medical evidence by way of letters from [a named] Psychologist of the [named health service] to [College 3] dated 28 June 2016 and 24 October 2016, which was consistent with and supported the applicant’s evidence that in 2016 he was suffering from side effects and depression in relation to his treatment and requested that the College give him a lighter load and give him special consideration in relation to his studies.

19. The applicant gave evidence that he essentially stopped going to class in April 2016, and returned to the course in late 2016. He claimed that he was on medication for six months. When he recommenced studies in the second semester he was on 50% study load and he fell behind his classmates who had moved ahead and he was in a new environment and did not know any fellow students and had minimal support. In light of the problems with his sickness, changes in mood, and the side effects associated with the medication he decided at the end of 2016, to change course and education provider and get a new start. The applicant confirmed that he had only passed one of six subjects he had undertaken in the [Subject 1].

20. The Decision Record confirms, referring to the PRISMS records, that the applicant’s enrolment in the [Subject 1] was initially deferred on compassionate grounds and cancelled on 28 April 2017 so as to transfer his course to study at anther education provider.

21. On 10 April 2017, the applicant enrolled in a Diploma of [Subject 2] at [College 4]. The applicant gave evidence that he stopped studying that course in December 2017 and he had studied eight subjects in the diploma course and only passed one subject.

22. On 28 January 2018, the applicant’s enrolment in the Diploma of [Subject 2] was cancelled due to unsatisfactory course progress. The applicant did not appeal the decision of the [College 4].

23. The applicant confirmed that in relation to that course he had ceased attending college due to his family ceasing to support him financially as he had informed his family that his sexual preference was men. The applicant had informed the delegate that his family had ceased providing financial support because their business in Vietnam was struggling. He admitted in evidence that he had lied to the delegate about that matter because he was embarrassed.

24. The applicant claimed that his parents were upset when they found out about his sexual preference and withdrew funding and made numerous unsettling comments, including why hadn’t the applicant died instead of his brother who would have had a wife and children at that time. The applicant claimed he was unsettled and depressed by his family’s response. However the applicant did not provide any medical evidence about his medical state and whether he was depressed and whether his mental state was such that he could not enrol in a course of study and study at college. The Tribunal does not accept that the applicant’s depressed mental state was a reason for not being enrolled.

25. The applicant gave evidence that he was financially unable to continue studying without support from his family at home. He gave evidence that he did not formally study during that period of time and instead he worked in a part time job and set up a food business, [named], selling food at markets on weekends with his partner.

26. The applicant conceded in evidence that he was not enrolled in a course of study from 29 January 2018 until 14 June 2019.

27. On 23 May 2019, the Department provided him with a Notice of Intention to Consider Cancellation of the Visa (NOICC) because he had not been enrolled since 29 January 2018.

28. On 6 June 2019, the applicant provided a response to the NOICC. The response stated omitting formalities:

    I would love to respond about the Intention to consider cancellation of my student visa.

    At the moment, i am aware of my mistake for not meeting requirements of student visa, as a result, my student visa might be cancelled by the DHA

    However, I hope the DHA can consider of my situation for not living a lucky life like other people.  That have led me to a bad situation like now.

    In the past, i have experienced a long period of depress and sadness due to the pass away of my older brother, he is the only sibling I have.  I told myself that i need to be stronger to get over this and be mature in order to take care of my parents.

    Till i came to Australia, I have studied hard and i love the subject that i study ([Subject 1]).

    Until one day i discover that i have infected [Medical condition 1], i had treatments and i had terrible side affects and decrease of the mood at all time, and keep me away from people.  And it took me a very long time to get over it, i used to meet psychiatrists for mental treatments at the [named] Hospital.  After i have recovered from the illness and depression, i have recognized [Subject 1] is something that is not suitable for me.  So i have change my major to study [Subject 2] at [College 4] diploma course pathway to bachelor.  However from the beginning of the 2018, i had to stop to study at the college due to my family situation.  My parents was failure in their business so they were unable to support for my study as before.  During that time until now i have been very concerned about my student visa and wanted to keep on studying, but i can’t due to lack of money and family support.

    Had to stop attending school, witnessed the hardship of my family but i weren’t able to help, i was completely lost my mind, and didn’t know what to do.  I was almost fall into deep again and i decide to stay home for self study about [Subject 2] and keep up my part time job at a food takeaway shop to save some money in order to afford for finishing my course soon.

    However, one of my biggest mistake that i have made in my life is not to come back to school but open a small business for myself.  After what i have learnt at school and own experience I have operated a small business in early 2019, selling [food] stall at the weekend farmer market.  I feel so bad to aware that my Visa is about to cancel, now I acknowledge that how important of following student visa’s requirements, I regretted for not coming back to school when i were able to afford it, but invest in business.  However after couple of month, i realize that i have made a good standard income weekly and can afford for my study without my family’s support, so now i really want get back to school and finishing my course, as well as avoid my visa being cancelled.  I know that is not acceptable to get excuse in this situation.  But i hope i could get an exception in this situation, because sometimes i can’t expect my life perfect as other person.  However, after what have happened to me, it made me become more independent, strength and mature.

    I really hope my Visa won’t be cancelled, even i am not an Australian citizen, but i hope i did contribute to the Australia economy by paying tax to the ATO annually, through my part time job and my new business.  And i would love to keep on contributing to the the Australia economy and see it as my obligation.

    I truly hope my Visa won’t be cancelled because i love Australia, i love this lovely country and friendly people, i don’t want to live in Australia as an unlawful person, with a cancelled Visa, I really hope that my student visa won’t be cancelled.  If my visa is cancelled, my parents will be very upset especially my grandma who is almost [age], she won’t be strong enough to accept this.

    At the moment, i decide to come back to finish my course at college, but my Coe have been cancelled and i need to apply for a new one.

    After i finish my diploma course i will plan to study pathway to bachelor of [Subject 2].

    I will try to update a new COE as soon as possible when i get from college.

29. On 14 June 2019, the applicant enrolled in the Diploma of [Subject 3] at [College 4]. The COE for the course [number] provided that he would commence his studies on 17 June 2019 and conclude on 20 June 2020. The applicant gave evidence that he did not commence that course and believed there had been a mistake because he had wanted to undertake a Diploma of [Subject 2].

30. The applicant gave evidence that he did not commence that course because his enrolment at [College 4] was cancelled when his visa was cancelled.

31. Based on the applicant’s evidence and his concessions in evidence, he was not enrolled in a registered course of study from 29 January 2018 until 14 June 2019 being a period of 16 months and 16 days which is a long period of time not to be enrolled.

32. Accordingly, the applicant has not complied with condition 8202(2) of his visa. As this was a condition which was attached to his visa, the applicant therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

33. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 or to remain in Australia

34. The applicant gave evidence that he came to Australia to study and undertake the English courses and the Bachelor of [Subject 1].

35. Notwithstanding that the applicant has been in Australia since [February] 2015, being more than five years, save for the English courses he has not completed any tertiary studies. The applicant studied both the [Subject 1] and Diploma of [Subject 2] and passed only two subjects of 14 subjects studied in those courses. The applicant’s poor academic results may be of a consequence of a student not genuinely studying.

36. The applicant gave evidence as discussed above that his studies were impacted by his illness and then family issues. Whilst the illness explains the poor outcome with his studies in [Subject 1] it does not explain his poor performance with the Diploma of [Subject 2] and failure to get enrolled for the period of 16 months and 16 days.

37. The applicant gave evidence at the hearing that essentially his non-enrolment on 29 January 2018 arose by reason of the financial circumstances set out above. However, whilst the applicant’s financial circumstances may be a reason for not being enrolled for a short period of time, it does not explain the reason for not being enrolled for that long period of time. During the period of not being enrolled he worked and set up his own business.

38. The period of non-enrolment which is a long period of time not to be studying in Australia creates some doubt as to whether the applicant has stayed in Australia for the purposes of study. The applicant has applied for a Combined Partner (UK 820/BS 801) visa with his partner to remain in Australia permanently (partner visa), which is also not consistent with an intention to remain and stay in Australia for the purpose of study.

39. The applicant has given evidence that if possible, he intends to remain in Australia to study a Diploma of [Subject 2] and then a Bachelor of [Subject 2], which will extend his stay in Australia for at least a further 2 years. Whilst he gave evidence he wishes to study in the future, such intention must be considered in light of his poor academic performance during the 5 years and 4 months he has been in Australia, the length of time that he was not enrolled in a registered course of study, the applicant setting up his own business and making an application for a partner visa to remain here permanently. The Tribunal is not satisfied that he genuinely intends to study in Australia in the future.

40. Having regard to the applicant’s evidence the Tribunal accepts that the applicant has travelled to Australia and stayed in Australia intending to study but that since January 2018 he has not stayed here for the purpose of study and that he does intend studying in the future. The Tribunal gives this matter marginal weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

41. The applicant gave evidence that he was not enrolled in a course of study from 29 January 2018 until 14 June 2019 being a period of 16 months and 16 days which is a long period of time not to be enrolled.

42. Therefore, the applicant has not complied with condition 8202(2) for a long period of time. The non-compliance with condition 8202(2) for a long period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or that he was not responsible for the reason of non-enrolment.

43. Apart from the non-enrolment and the Decision Record confirms that the applicant may have also been in breach of condition 8516 of the visa, on the basis that the applicant has not maintained enrolment at the higher education level, the Tribunal is not aware of any other breaches of the visa by the applicant.

44. The applicant has claimed that the reasons for non-enrolment were due to medical reasons with him, issues with his family and financial reasons as set out above. As discussed above, the Tribunal accepts that his medical condition affected his studies in the [Subject 1], but not in the Diploma of [Subject 2]. The issues that the applicant had with his family about informing them of his sexuality led to funding support from his family being withdrawn. Whilst the loss in funding may have been a legitimate excuse for not being enrolled for a short period of time, it does not provide an excuse for not being enrolled for 16 months and 16 days and the Tribunal is not satisfied by the applicant’s evidence as to the explanation for the reasons for which he was not enrolled.

45. Further the Tribunal finds that with regard to the reasons for the non-enrolment, it is the responsibility of the applicant to ensure that he has sufficient financial resources to meet his tuition fees.

46. Having regard to the period of non-enrolment and that he was having financial difficulties in meeting the tuition fees for his courses, and the duration of the breach, the Tribunal gives it substantial weight towards the visa being cancelled.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

47. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.

1. The applicant gave evidence that if the cancellation was set aside, he would return to study and seek to obtain qualifications of Diploma of [Subject 2] and Bachelor of [Subject 2], before he intends returning to Vietnam to open a business. However, such evidence must be considered in the context of the applicant’s application for a partner visa to remain here permanently.

2. The applicant claims that whilst awaiting the determination of the application for the partner visa, he may stay in Australia on a bridging visa, but he will have no study rights or work rights in Australia. The applicant may be able to apply to vary the bridging visa to give him work rights. However, the applicant would not be able to continue his studies.

3. The applicant gave evidence that if the visa remained cancelled it would cause him hardship and impact his future, prevent him from undertaking study to obtain qualifications to provide vindication of his worth to his family and advance his future, make him reliant on his partner while he is awaiting the outcome of the partner visa application and if that application is unsuccessful, he will be required to return to Vietnam and he will be unable to visit his partner in Australia.

4. The Tribunal accepts that if his visa is cancelled, he may have to return home without a qualification, which would provide some degree of hardship in light of his stay in Australia of more than 5 years.

5. However, the applicant is able to continue his relationship in Vietnam. There was no evidence put before the Tribunal that the applicant could not continue his relationship with his partner in Vietnam, if he was required to leave Australia.

6. While the impacts of cancellation would create some hardship, it is important to note that the student visa is a temporary visa and absent any other visa obtained by the applicant, the applicant will be required to return home once that visa expires or comes to an end.

7. The Tribunal finds that these above matters are the consequences of the visa cancellation, but they are not matters which would constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.

8. The Tribunal considers that the above matters give some weight towards the visa not being cancelled.

   Circumstances in which ground of cancellation arose

9. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

10. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

11. Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment.

12. The applicant knew and was aware that by not being enrolled in a registered course of study he would have been in breach of condition 8202 and that his visa may be cancelled.

13. The primary purpose of the applicant under the visa is to undertake a registered course at a level appropriate to his visa and the applicant was not enrolled for a period of 16 months and 16 days which is a substantial period to be in breach of the visa.

14. The applicant claims that the circumstances of the cancellation arose from a change in his financial circumstances which resulted in him being unable to meet his tuition fees.

15. The Tribunal has considered the applicant’s explanation for why he was not enrolled for this substantial period and therefore in breach of condition 8202(2). The Tribunal notes that the applicant was able to get re-enrolled before the visa was cancelled, but it does not accept the circumstances were beyond his control. The Tribunal does not accept the applicant’s circumstances were such that they indicate a reasonable explanation for not being enrolled for such a period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.

    Past and present behaviour of the visa holder towards the Department

16. According to the Decision Record, the applicant responded to the NOICC and he has co-operated with the Department.

17. However, the applicant has lied to the Department about the reason for the loss of enrolment in the Diploma of [Subject 2] course. He claimed that he lost financial support from his family because they were having financial difficulties as opposed to withholding funding due to his sexual preference. While the applicant claims that he lied because he was embarrassed, that is not an excuse for his conduct.

18. Further there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

19. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, 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

20. If the Tribunal decides to affirm the decision to cancel the visa under these grounds and his application for a partner visa is unsuccessful, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further pursuant to s.48 of the Act the applicant will have limited options to apply for further visas in Australia, so he may need to depart Australia and apply from overseas for most types of further visas.

21. Further, if the Tribunal decides to affirm the decision to cancel the TU500 student visa under these grounds, then the cancellation will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013 of Schedule 4 to the Regulations, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.

22. However, these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.

23. The applicant gave evidence that if the visa remained cancelled, he would remain in Australia and await the outcome for the application for the partner visa and if that is unsuccessful, he would return to Vietnam. There is no indication that he would become unlawful or be subject to detention.

24. Accordingly, the Tribunal gives this factor some weight towards the visa not being cancelled.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

25. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled and the application for the partner visa was unsuccessful he would return to Vietnam and he did not give any reasons as to why he could not return to Vietnam and he has not made any claims that relate to this consideration. Accordingly, the Tribunal gives this factor no weight towards the visa not being cancelled.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

26. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

    Any other relevant matters

27. The Tribunal is not aware of any other relevant matter in relation to the decision whether the visa ought to be cancelled.

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

    DECISION

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

    Michael Biviano
    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.