2005203 (Migration)

2005203 (Migration) [2020] AATA 4680 (29 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2005203
MEMBER:Michael Biviano
DATE:29 July 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 29 July 2020 at 1:50pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) enrolment in a higher level course ceased – limited academic progress – family health issues – applicant wife pregnant – applicant’s business in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, 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

This is an application for review of a decision dated 13 March 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with subclause (2)(a) of condition 8202 of his visa as he was not enrolled in a registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicants appeared before the Tribunal on 4 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review by their registered migration agent.
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
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?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·must be enrolled in a full time registered course: 8202(2)(a);
·must maintain enrolment in a registered course that once completed will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b);
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c); and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).
In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full time registered course for the period from 31 May 2019 to 6 March 2020.
The Decision Record of the delegate of the Department of Home Affairs on 13 March 2020, which was provided to the Tribunal by the applicant, confirms the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 13 September 2017 and the reasons for the cancellation of the visa (Decision Record).
The applicant came to Australia [in] October 2017 pursuant to a Student (Subclass TU 573) visa to undertake a package of courses at [University 1] including an English course and a Master of [Subject 1].
On 24 April 2020, prior to the hearing, the applicant filed with the Tribunal:
1. Decision Record; and
2. Medical scans and radiology documents confirming that [the applicant’s wife] is pregnant.
On 30 April 2020, prior to the hearing, the applicant filed with the Tribunal:
1. Monthly chronology from the applicant’s arrival in Australia until he received notice from the Department regarding intention to cancel his student visa evidencing reasons for stop in studies due to health issues and family pressure.
2. Submissions from the applicant as to where he lives in Vietnam, who he will live with on his return to Vietnam and why the course he is now enrolled in in Australia will assist him and his family.
3. Explanation from the applicant regarding how operating his business in Australia while studying complements his plans for the future.
4. Applicant’s response to the Department’s Notification of Intention to Consider Cancellation (Response).
5. Copy of letter from [a named doctor] dated 5 March 2020.
6. Medical documents for [the applicant’s wife] including clinical notes, medical screenings and pharmacy script.
7.Applicant’s curriculum vitae confirming his academic background, employment and family composition prior to travelling to Australia on a student visa in November 2017.
8.List of applicant’s family members’ flights and details regarding reasons for trips to and from Vietnam with flight itineraries.
9. Statement from [the applicant] regarding his fears for his family’s safety if forced to fly back to Vietnam during the current COVID-19 pandemic.
10. Copy of applicant’s current passport bio data page.
11. Copy of Certificate of Enrolment (COE) numbered [deleted] to study a Graduate Diploma of [Subject 2] at [College 1] from 13 April 2020 to 11 April 2021.
12. Copy of applicant’s Bachelor of [Subject 3] from [College 2] dated 16 July 2017.
13.Copy of [the applicant’s wife’s] Bachelor of [Subject 4] from [a named] University dated 14 July 2014.
14.Copy of [the applicant’s wife’s] Master of [Subject 5] from [University 2] dated 1 March 2016.
15.Copy of the applicant’s [English course] from [University 1] dated 9 February 2018.
After the hearing, the applicant by his migration agent submitted further documentation in support of his application, which related to his medical condition and his wife’s medical condition and pregnancy. On 25 May 2020, his registered migration agent made a submission enclosing his complete medical record from his doctor. The submission stated:
Further to [the applicant’s] AAT Hearing of Monday 04 May 2020 please find annexed a complete medical history from the [named] Clinic confirming that since April 2019 he had been consulting Medical Professionals in relation to insomnia and stress – as outlined by [the applicant] at Hearing.
We also advise that if forced to depart Australia at this time the family would suffer significant financial hardship as they would be forced to sell their business for significantly less than the purchase price due to circumstances surrounding Covid-19.
The applicant outlined at Hearing his reasons for wanting to complete his Australian studies and then return to Vietnam in a position to be financially viable and support his family. He further outlined that the stress surrounding his wife’s miscarriages impacted on his well-being and ability to perform well academically. He submits that as his wife is now [period] pregnant a great weight has lifted for the family’s shoulders and he looks forward to returning to study as soon as he is afforded study rights.
The applicant’s submitted a complete record medical history which confirmed that the purpose for his visits to the doctor on 17 April 2019 were for insomnia and stress, on 16 January 2020 for URTI-viral and stress management, and on 5 March 2020 for stress and depression. However, the medical report does not diagnose that the applicant was suffering from depression or that his condition was so severe that he was unable to study. Further, the medical report confirms that no medication was prescribed to the applicant for that alleged condition.
Further, on 6 July 2020, his migration agent made a submission enclosing medical information for the applicant’s wife’s attempts to get pregnant. The submission stated:
Further to the above, please find annexed the applicant’s evidence of registration / initial payment of fees in relation to their obstetrician and their pregnancy.
We confirm that in the current highly challenging circumstances amplified by Covid-19 that the couple’s commitment and desire to remain in Australia to complete studies and have their pregnancy proceed safely inside of Australia is an additional compelling ground for the overturning of the decision to cancel their student visa and permit [the applicant] to complete his studies.
The medical evidence submitted was an invoice from [another named doctor] dated 23 June 2020 for $2,500 for pregnancy planning and management fee. There were no details provided regarding whether the applicant’s wife had fallen pregnant. The applicant had given evidence at the time of the hearing that she was [period] pregnant.
The applicant gave evidence that he completed secondary schooling in Vietnam and he completed a Bachelor of [Subject 3] from [College 2] in July 2017. The Decision Record confirms that the applicant obtained his Student (Subclass 500) visa on 13 September 2017.
The applicant arrived in Australia [in] October 2017. He studied [his English course] from [University 1], which he completed, and obtained a Certificate dated 9 February 2018.
In March 2018, the applicant commenced a Master of [Subject 1] from [University 1]. The applicant gave evidence that in the first semester, he passed 2 subjects of the 4 subjects that he was studying. The applicant gave evidence that his wife and their daughter arrived in Australia in May 2018, while he was studying. The first semester was to conclude in June 2018.
The applicant gave evidence and submitted in documentation to the Tribunal that in October 2018, he purchased a [business] to generate income while studying in Australia. He managed the store during November and December 2018. The Tribunal notes in passing that the purchase of the store and running that business in Australia is inconsistent with someone coming to Australia for the purpose of study.
The applicant claims that his wife had morning sickness and was unwell. The applicant in the Response claimed that he was unable to concentrate on his studies and was under pressure. He claims that by reason of those matters, he only passed 2 of 4 subjects.
In the second semester, he studied 3 subjects and did not pass any of those subjects. He confirmed that he attended classes but did not undertake assignments. He gave evidence that in September 2018, his wife miscarried their baby and that caused a substantial amount of stress resulting in a sleep disorder. The Tribunal accepts that the loss of an unborn child would have been traumatic and affected his ability to study in the second semester in 2018.
The applicant gave evidence that he attempted to enrol in the Master of [Subject 1] at [University 1] in the first semester of 2019, but they did not accept his enrolment as it was late. The applicant claimed that he had had discussions with the course co-ordinator at [University 1] and he sought a leave of absence or the ability to defer his studies. The course co-ordinator told him that the University could not accept the request for a leave of absence because he had sought to enrol late in the course which was not accepted. The applicant confirms that he was told in June 2020 that he had lost his enrolment in the master’s course.
The Decision Record confirms that the applicant lost his enrolment in the master’s course as at 31 May 2019.
The applicant gave evidence that he decided not to enrol in the second semester of 2019, because he wanted to make enquiries about registering in the course again at [University 1] and starting afresh in 2020. There was no evidence advanced that the applicant was depressed to the extent that he was unable to study or enrol in a registered course of study.
The Response confirms that in September 2019, the applicant flew to Vietnam with his family to enable his wife to undertake IVF treatment in Vietnam. The treatment was stressful and his wife remained in Vietnam. He returned to Australia in October 2019 with his daughter and he looked after their daughter for a 3-month period. The Response confirms that the IVF was unsuccessful and they lost another baby, and they reunited in Australia on 10 February 2020.
On 21 February 2020, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa.
On 6 March 2020, the applicant enrolled in a Graduate Diploma of [Subject 2] through [College 1] and he applied for a new Student (Subclass 500) visa.
The applicant provided a COE for the Graduate Diploma course which confirms that the course was to be undertaken from 13 April 2020 to 11 April 2021. This course is at level 8 of the AQF. The enrolments in those courses were not at level 9 of the AQF or higher as required by subclause (2)(b) of condition 8202 of the visa.
The applicant provided the Response to the NOICC.
The applicant gave evidence that he was aware that he was in breach of his visa by not being enrolled in a registered course of study.
The applicant conceded in evidence that he was not enrolled in a registered course from 1 June 2019 to 6 March 2020, being a period of more than 9 months. By reason of not being enrolled in a registered course for that period of time, he did not meet condition 8202(2)(a) of his visa.
On the evidence before the Tribunal, the applicant did not maintain enrolment in a registered course of study for the period from 1 June 2019 to 6 March 2020. Accordingly, the applicant has not complied with condition 8202(2) of his visa. As this was a condition that 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) of the Act.
Consideration of the discretion to cancel the visa
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, and whether the visa holder has a compelling need to travel or to remain in Australia
The applicant gave evidence that he came to Australia to study and undertake the courses as discussed above.
As discussed above, the applicant was enrolled until 31 May 2019.
There is no doubt he came to Australia for the purpose of studying in Australia.
As discussed above, he was not enrolled from 1 June 2019 and he made no attempt to re‑enrol until after he received the NOICC.
The applicant lost his enrolment in the master’s course on 31 May 2019 because he wanted to make fresh start with his studies in 2020, and based on the applicant’s evidence he did not study at all during 2019. The applicant’s motivations for not studying were inconsistent with the purpose of obtaining his visa. While the applicant contends he was stressed and too depressed to study and enrol, he did not provide medical evidence supporting that he was unable to study or enrol during 2019. Further, his actions at that time were inconsistent with someone too stressed to study. He gave evidence that he continued to manage the [business] and that he went back home with his wife and daughter in September 2019 to enable his wife to have IVF treatment back in Vietnam. He returned with his daughter in October 2019 and claimed that he could not study because he had to look after his daughter as his wife stayed in Vietnam for a 3-month period.
If the applicant had been enrolled during this time, he could have deferred. This break would not have affected his enrolment.
The Tribunal finds that during the applicant’s stay over the period of non-enrolment, that by his conduct, the purpose of stay was not to study.
The applicant has given evidence that he obtained enrolment in a Graduate Diploma of [Subject 2] on 6 March 2020. The enrolment was obtained after the applicant received the NOICC. The applicant gave evidence that he intends completing that course or reassessing his options and possibly enrolling in a master’s course. The applicant gave evidence that he wishes to complete his qualifications and return to Vietnam. He claims that he was on a leave of absence from his job in [a named agency] in Vietnam to study and he intends to return to that position after completing his course.
The applicant’s poor academic results together with his long period of non-enrolment are indicative of a student who has not applied himself and does not intend to genuinely study.
Having regard to the applicant’s evidence and his conduct during his stay in Australia, including purchasing his own business, the Tribunal accepts that the applicant has travelled to Australia for the purpose of studying and he intends to study in the future, but his academic results, his running a business and the period of non-enrolment reveal that he has not stayed here for the purpose of undertaking his studies.
For these reasons, the Tribunal gives these matters marginal weight towards the visa being cancelled.
The extent of compliance with visa conditions
The applicant was not enrolled at the appropriate level course for the period from 1 June 2019 to 6 March 2020. Therefore, the applicant has not complied with condition 8202(2)(a) for a long period of time. The non-compliance with condition 8202(2)(a) for such a long period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or finds he was not responsible for the reason of non-enrolment.
As discussed above, the applicant’s non-compliance with the visa condition relates to his failed studies and him wanting a fresh start in 2020 after his college refused his late enrolment in Master of [Subject 1] in March 2019. The applicant claims that he was depressed at the time.
However, the medical evidence does not support that he was unable to study or gain enrolment in a new course.
The applicant in evidence confirmed that he knew that he was in breach of his visa.
The Tribunal understands the applicant’s reasons for not being compliant with the visa, where the applicant was aware that he would be in breach of his visa by not enrolling in a course of study.
It is also important to note that the applicant had sought to remedy the breach of visa by gaining an enrolment in the Graduate Diploma of [Subject 2] course on 6 March 2020. However, the Graduate Diploma is at level 8 of the Australian Qualifications Framework (AQF). The applicant was required to maintain enrolment at the highest level of the AQF that he undertook to study when the visa was granted pursuant to rule 8.02(2)(b), which was a master’s course which is at level 9 of the AQF. The enrolment in the Graduate Diploma course did not remedy the breach.
The Tribunal finds that apart from the above matters before this Tribunal, there are no other matters raised about the applicant not being compliant with his visa.

Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a registered course of study at the appropriate level and that they are responsible for ensuring they are enrolled in a registered course of study at that level. The applicant was required to be enrolled in a course at level 8 of the AQF or higher.
The Tribunal finds that the reasons for not being enrolled in a course at the appropriate level of the AQF were the responsibility of the applicant.
Having regard to the long period of the breach and the reasons for losing the enrolment in the Master of [Subject 1] course, the Tribunal gives these matters substantial weight towards the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.
The applicant gave evidence that if his visa was cancelled, it would cause him and his family a substantial degree of hardship as:
a.It would mean that he would return home without a qualification, which would make it difficult to get a job;
b.He would be living with extended family which would be difficult with his child and wife and he complained it would be difficult for him to breathe;
c.He would not have enough time to sell his business, which in submissions was claimed would be sold at undervalue if he was required to leave immediately;
d.He would prefer to stay in Australia which has medical care in light of the current COVID‑19 pandemic, especially as there is a lack of health facilities in Vietnam;
e.Australia would be a better country in which to give birth and manage the pregnancy. He claimed his wife was [pregnant].
The Tribunal notes that the applicant has not completed any courses and he will return home to Vietnam without a qualification if the visa is cancelled. Further, the Tribunal accepts that there will be some financial hardship caused to the applicant and his family if the visa is cancelled, in the cost of tuition fees that have been paid for the last 2 years, but they are predominantly lost whether he undertakes any further study in Australia or not unless he is able to re‑enrol in the master’s course.
The Tribunal also finds that there is nothing preventing the applicant studying back at home.
The applicant claims that he purchased the business as an investment and to provide his wife with an income while they were in Australia. The difficulty with such a contention is that it demonstrates an intention to work and remain in Australia and is inconsistent with the purpose of a temporary visa to study in Australia. The applicant has chosen to invest in a business, he obviously bears the risk of that investment and he would be at liberty to sell that business from overseas if he needs to complete the sale process.
While the Australian health system may be better for IVF and the COVID-19 pandemic, these factors do not provide a degree of hardship. The applicant at the conclusion of the visa would be expected to return back home and those factors would remain.
In any event, the Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters that would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.
The Tribunal considers that the above matters give some weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
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.
The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.
Ultimately, the responsibility regarding enrolment rests with the student.
The applicant knew and was aware that by not being enrolled in a registered course of study and at the appropriate level, he would be in breach of condition 8202(2)(a) and that his visa may be cancelled.
The primary responsibility of the applicant under the visa is to be enrolled and undertake a registered course at a level appropriate to his visa. The applicant was not enrolled in a registered course for a period of more than 9 months, which is a long period of time to be in breach of the visa.
The Tribunal has considered the applicant’s explanations for why he was not enrolled in a registered course for such a long period of time and therefore in breach of condition 8202(2)(a). The Tribunal does not accept those circumstances were beyond his control, or circumstances that provided a reasonable explanation for not being enrolled at the appropriate level of course for such a long 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
According to the Decision Record, the applicant responded to the NOICC. 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
The cancellation of the visa will affect the visa of his dependent spouse and child, the other applicants, should the visa be cancelled.
In the circumstances, this matter is relevant in this application and the Tribunal gives this some 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
If the Tribunal decides to affirm the decision to cancel the visa on these grounds, 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 would need to depart Australia and apply from overseas for most types of further visa.
Further, if the Tribunal decides to affirm the decision to cancel the Student (Temporary) (Class TU) visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet public interest criterion 4013, 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 3 years.
However, these are the intended consequences of the legislation when a visa is cancelled on these grounds.
The applicant gave evidence that if the visa remained cancelled, he would return to Vietnam, and therefore there is no indication that he would become unlawful or be subject to detention.
Accordingly, the Tribunal gives this factor marginal 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
Australia is a signatory to several human rights treaties including the Convention on the Rights of the Child. The Tribunal has given consideration to the applicant’s child and considered what is in her best interests. One key consideration is the integrity of the family unit. The child is [age] years old and has ordinarily been resident in Australia since [May] 2018. Due to her young age and the limited time she has spent in Australia, she would experience limited hardship readjusting to life outside of Australia back in Vietnam with her parents and extended family.
If the applicant’s visa is cancelled, then the child’s visa would be cancelled. Based on the evidence given, the Tribunal finds that the cancellation is unlikely to lead to the breakup of the family unit or separation of family members, as the immigration status of the family would be aligned, and as they are all of the same nationality they would be able to depart together.
Accordingly, this case would not lead to a breach of the Australia’s international obligations under the CRC in relation to observing the rights of children in Australia and would not lead to a breach of any other international obligations Australia may have.
Given these matters, the Tribunal gives this factor marginal 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
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
As there are no other relevant matters identified, the Tribunal gives this factor no weight towards the visa not being cancelled.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Michael Biviano
Member
ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)    The holder must be enrolled in a full time course of study or training if the holder is:
(a)    a Defence student; or
(b)     a Foreign Affairs student; or
(c)    a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)     must be enrolled in a full time registered course; and
(b)     subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)    must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)    is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2020] AATA 4680

29 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Jurisdiction

Breach

Statutory Construction

Procedural Fairness