CHU (Migration)

[2020] AATA 728

CHU (Migration) [2020] AATA 728 (13 March 2020)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thu Trang CHU

CASE NUMBER:  1712740

HOME AFFAIRS REFERENCE(S):          BCC2017/1357609

MEMBER:Gregory Sarginson

DATE:13 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 13 March 2020 at 5:10pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – not enrolled in registered course – family’s health – applicant’s relationship with partner – mental health – ‘break’ from study – no approach to education provider – enrolment cancelled – not notified of cancellation – short period of non-enrolment – enrolment with different provider and continuing study – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 359AA

Migration Regulations 1994 (Cth), Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 June 2017 made by a delegate of the Minister for Immigration and Border Protection 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 was not enrolled in a registered course of study since 16 February 2017. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 7 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

5. Prior to the hearing, the applicant provided the following documents in support of the review:

   a)    Copy of the decision of the delegate.  The decision of the delegate includes reference to the response to the Notice of Intention to Consider Cancellation of Visa (‘NOICC’) that the applicant had provide and was considered by the delegate;

   b)    Copy of extract of passport;

   c)    Report of Mr Crouch, Mental Health Social Worker of New Vision Psychology dated 1 June 2017;

   d)    Department of Education and Training Overseas Student Confirmation of Enrolment (‘CoE’) in respect of the Diploma of Business course at Nick Hannay Pty Ltd (t/as Hannay Accreditation) for the period from 15 May 2017 to 11 May 2018;

   e)    Diploma of Business from Hannay International College issued on 13 September 2018;

   f)     Statement of results from Hannay International College;

   g)    CoE in respect of the Bachelor of Business course at Group Colleges Australia Pty Ltd (t/as UBSS) in respect of the course commencing on 27 August 2018 and ending on 13 August 2021;

   h)    Academic Progress Statement from UBSS dated 7 August 2019.  The document stated that the applicant was enrolled in the Bachelor of Business (Major in Management) course comprising of 24 subjects and had successfully completed 12 subjects, including 5 subjects for which the applicant had received credit.

6. Subsequent to the hearing, the Tribunal received a written submission from the applicant dated 21 August 2019.  The applicant was granted the opportunity to file such a submission, in response to issues raised by the Tribunal at the hearing.

7. Prior to the hearing, the Tribunal had obtained the following documents:

   a)    Movement records;

   b)    Department of Education Provider Registration and International Student Management System (‘PRISMS’) record, which contains a history of enrolments in registered courses by international students.

   c)    The Department of Immigration and Border Protection (as it then was) file in regards to the applicant.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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?

10. 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).

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

12. The applicant did not dispute at the hearing the information contained in the delegate’s decision that she had not been enrolled in a registered course of study in the relevant period identified in the delegate’s decision from 16 February 2017. 

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether 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 Procedural Instruction ‘General visa cancellation powers’.

    Evidence of the Applicant

15. The applicant is 24 years old.  Her home country is Thailand.  She arrived in Australia on or about 1 March 2014 on a student visa.  The applicant’s intention was to study English; then a Certificate IV in Business; then a Diploma of Business (all at TAFE NSW) and then progress to a Bachelor of Business and Commerce at Western Sydney University.

16. The applicant stated she found studying in Australia challenging due to English being her second language; and she had no friends or family in Australia.  By February 2015, the applicant had completed a Certificate III in English and a Certificate IV in Business.

17. The applicant stated that she commenced studying for a Diploma of Business in February 2015, but “lost confidence” and spoke to a registered migration agent, who advised her that there would be less pressure if she studied an “easier course”. 

18. On the advice of the registered migration agent, the applicant enrolled in a Diploma of Leadership and Management and a Bachelor of Leadership and Management at Holmes Institute commencing in July 2016.

19. In September 2015 the applicant met her partner, who is also from Vietnam and had been studying in Australia. The moved in together in October 2016.   In November 2016, the applicant’s partner opened a restaurant.  The applicant stated that she did not work in the restaurant, but came to help occasionally.  The applicant stated that her partner was stressed due to operating the restaurant, which led to arguments and discord between them, and affected her studies.  The applicant was fearful her partner was going to leave the relationship.

20. In January 2017, the applicant found out when speaking to her brother (who was born in 2009) on Facetime that he had been shot in the leg, and had shrapnel in his leg.  This had occurred in May 2016, but the applicant’s family had not told the applicant because they did not want her to worry.  The applicant stated that she was worried that her brother may suffer a permanent disability, and worried about her father’s health.  The applicant’s father at this time had lost weight; had sleep difficulties and back pain.  However, the applicant’s father had not been admitted into hospital nor had any medical treatment.  The applicant had thought about returning to Vietnam to see her family, but thought that this would make her mother “more stressed”.

21. The applicant stated that due to a combination of her concerns about her brother’s health and stress in her relationship with her partner, she became “isolated” and stopped attending classes.  The applicant thought that her mental state would improve if she took a “little break” from study.  The applicant did not inform Holmes Institute of her situation, or sought any assistance from her education provider.  The applicant failed to enrol in February 2017.

22. The applicant stated that in May 2017 she “felt better” and returned to Holmes Institute.  When she returned, the applicant was informed that the education provider had cancelled her enrolment.  The applicant stated that she was given no notice or information from Holmes Institute that her enrolment had been cancelled.

23. Immediately after the applicant had been informed by Holmes Institute that her enrolment was cancelled, she enrolled in a Diploma of Business at Hannay International College and was issued a CoE from that education provider.  The CoE stated that the period of the course was 15 May 2017 to 11 May 2018.

24. On 23 May 2017 the Department of Immigration and Border Protection (as it then was) issued a NOICC.  Upon receiving the NOICC, the applicant did “research over the internet” regarding psychological assistance, and contacted Mr Crouch.  The applicant denied that her migration agent had advised or arranged for her to be treated by Mr Crouch.  The applicant attended an appointment with Mr Crouch, Mental Health Social Worker, on 1 June 2017.  Mr Crouch prepared a report dated 1 June 2017.

25. The applicant has had no treatment regarding her psychological condition other than the one occasion she attended Mr Crouch on 1 June 2017.

26. On 6 June 2017 the applicant provided a written response to the NOICC, including the CoE from Hannay International College and the report of Mr Crouch.

27. After the delegate’s decision, the applicant continued to study at Hannay International College. She completed the course and was given a Diploma of Business from Hannay International College dated 13 September 2018.  The statement of results from Hannay International College stated that the applicant was “competent” in the 8 subjects she had completed that comprised the course.

28. The applicant then enrolled in a Bachelor of Business course at UBSS commencing 27 August 2018 and ending 13 August 2021.  The applicant stated that she was now focussed upon study and was completing subjects successfully.  As discussed previously, an “Academic Progress Statement” from UBSS dated 7 August 2019 sated the applicant had completed 12 subjects (5 of which she had received credit for previous studies), which was 50% of the course.

29. The applicant’s partner no longer operates a restaurant, and is currently studying for a Certificate IV in Floor Tiling.  When asked about whether her partner intended to remain in Australia, the applicant stated she thought so, but was not certain, and the applicant’s partner had no clear plans because he does not know whether or not he will be able to remain in Australia.  However, in a written statement provided after the hearing, the applicant stated that she and her partner will return to Vietnam after her studies in Australia are completed.

30. In respect of her future plans, the applicant stated that she intends to complete the Bachelor of Business course and apply to study for a Masters of Business Administration at UBSS.  After completing such courses, the applicant stated that she and her partner will return to Vietnam.  The applicant stated that her partner has qualifications in construction and interior design, and her plan is either to start a construction business with her partner in Vietnam, or work for a “big company” such as Vingroup JSC, which operates in construction and real estate.  The applicant stated that also she wished to return to Vietnam to “look after her parents in old age”.

31. In respect of her current situation in Australia, the applicant stated that she had commenced part time work as a nail technician in approximately November 2018.  The applicant stated that she was complying with bridging visa conditions regarding hours of work.

32. The applicant stated that she has no family in Australia and her family ties are to Vietnam.

33. In respect of hardship should the visa be cancelled, the applicant stated that if the visa was cancelled and she returned to Vietnam, the applicant would lose the fees paid to enrol in the Bachelor of Business degree and would return to Vietnam with limited qualifications.  The applicant stated her family would be very unhappy, with her younger sister due to attend university in 2020.

34. The applicant acknowledged that she had “wasted time” in regards to the study in the past, but since enrolling in the Diploma of Business course she had been committed to study and had not failed any subjects.

35. In respect of travel from Australia since her arrival, the applicant stated that she had not returned to Vietnam, but kept in touch with her family in Vietnam regularly over the internet and telephone.  The movement records of the Department were consistent with the applicant’s evidence in this regard, and did not contain any adverse information.

36. The PRISMS record stated that the applicant had finished the following courses:

    a)    English language programs (beginner to advanced): finished on 19 December 2014;

    b)    Certificate III in Advanced English for further study: finished on 6 February 2014;

    c)    Certificate IV in Business: finished on 30 December 2015;

    d)    General English (beginner to upper intermediate); finished on 13 July 2018.

37. The PRISMS record stated that the applicant had enrolled in the Diploma of Business course commencing 15 May 2017 (with the course duration 1 year) but that enrolment had been “cancelled”.  However, the Tribunal accepts from the documentary evidence provided by the applicant that she completed this course at Hannay College. 

38. When the information contained in the PRISMS record was raised with her at the hearing, she stated that she did not know why the education provider had informed the Department of Education that the enrolment had been cancelled.  The Tribunal accepts the evidence of the applicant that she had enrolled in this course at Hannay College and completed the course, and the reference to enrolment being “cancelled” is either attributable to incorrect information provided by Hannay College, or some other reason such as the accreditation of Hannay College as the provider of registered courses of study to international students being withdrawn.

39. The PRISMS record contained information setting out a number of enrolments of the applicant in courses had been cancelled for reasons including non-payment of fees and non-commencement of studies; and that there had been a variation of enrolment in the Diploma of Business course on 28 July 2015 due to “compassionate or compelling circumstance”.

40. Pursuant to s 359AA of the Act, the Tribunal explained that the information contained in the PRISMS document would be the reason or part of the reason for affirming the decision of the delegate because the period of time the applicant had been in Australia without completing courses of study may indicate that the applicant’s purpose of travel and stay in Australia was not genuinely to study and be indicative of a failure to comply with visa conditions.  The applicant was invited to comment or respond to the information, and advised that she may seek additional time to comment and respond.

41. The applicant commented and responded at the hearing, but also sought additional time to comment and respond.  The Tribunal granted the applicant a further 14 days to comment and respond in writing, and the applicant duly provided written comments.

42. In respect of the information contained in the PRISMS record, the applicant stated that she had only enrolled in the courses she had identified, and had no knowledge as to why there would be multiple enrolments by the educational providers in the same course.  The applicant stated that she had not notified Holmes Institute that she had ceased studies; but had failed to enrol in February 2017 and then had been told by Holmes Institute when she enrolled in May 2017 that her enrolment had been cancelled.

43. The applicant stated that she was genuinely in Australia for the purpose of study and had been consistent in her studies after enrolling in the Diploma of Business course in May 2017.

    Consideration of Discretion

44. In considering the exercise of discretion, the Tribunal has had regard to the circumstances of the case; the documentary and oral evidence of 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

45. The Tribunal accepts that the applicant’s purpose of travel and stay in Australia was to study.  In this regard, the applicant has completed courses of study, relevantly including a Certificate IV in Business and a Diploma of Business.   The Tribunal accepts that the applicant is currently enrolled in a Bachelor of Business degree, and as of the date of the hearing in the Tribunal had completed half the subjects in the course (taking into account the subjects the education provider had given the applicant credit for). 

46. The Tribunal also accepts that the applicant had given a reasonable explanation for the information contained in the PRISMS record, and does not conclude that the information contained in the PRISMS record indicates the applicant is not in Australia genuinely for the purpose of study on a temporary basis.

47. The Tribunal gives some weight to this factor towards the visa not being cancelled.

    The Extent Of Compliance With Visa Conditions

48. The applicant had not been enrolled in a registered course of study between 17 February 2017 and 15 May 2017; a period of approximately 3 months.  It is a condition of a student visa that the holder of the visa remains enrolled at all times in a registered course of study.   The applicant also gave evidence that she had not been attending classes or actively studying for a number of months prior to February 2017 as she was taking a ‘break’ from study due to her concerns regarding her family situation involving her brother and father; and stress in her relationship with her partner.

49. The period of time the applicant was not actively studying and the period during which she was not enrolled in a registered course of study are given some weight towards the visa being cancelled.  The applicant also failed to inform the education provider of her personal situation and seek assistance or deferment of enrolment, which weighs in favour of the visa being cancelled.

50. However, weighed against that is the evidence of the applicant that she was not informed by the education provider that her enrolment had been cancelled, and her belief that she was enrolled until speaking to her education provider in May 2017.  According to the delegate’s decision, the applicant only enrolled at Hannay College in the Diploma of Business course on 25 May 2017, which was after the applicant received the NOICC dated 23 May 2017.  However, that finding is not consistent with the evidence.  The evidence of the CoE from Hannay College was that the course commenced on 15 May 2017, which was before the NOICC was issued.

51. The actions of the applicant in enrolling in the Diploma of Business soon after being aware that her enrolment in the Diploma of Leadership and Management and Bachelor of Leadership and Management courses had been cancelled by Holmes Institute and prior to the issue of the NOICC is consistent with the applicant rectifying the breach of condition upon becoming aware of the breach, and weighs in favour the visa not being cancelled.

1. Further, since the cancellation the applicant has continued to study; completing the Diploma of Business course at Hannay College and successfully completing subjects at UBSS in the Bachelor of Business course. The applicant studying and completing subjects since May 2017 is given significant weight towards the visa not being cancelled.

   Degree Of Hardship That May Be Caused (Financial, Psychological, Emotional Or Other Hardship)

2. The Tribunal accepts that the applicant’s family would be disappointed if the applicant returned to Vietnam without having achieved a Bachelor’s degree; and some financial hardship would be caused if the applicant was unable to complete her current Bachelor of Business degree.

3. The Tribunal gives this factor some weight towards the visa not being cancelled.

   Circumstances In Which Ground Of Cancellation Arose. If Cancellation Is Being Considered Because Of Relationship Breakdown, Whether The Relationship Has Broken Down As A Result Of Family Violence. 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

4. The grounds of cancellation were due to non-enrolment during the relevant period from 16 February 2017. 

5. The non-enrolment did not occur due to relationship breakdown.  Although the applicant gave evidence that she was stressed and had relationship difficulties that does not constitute a relationship breakdown.

6. In respect of whether the circumstances leading to non-enrolment were beyond the applicant’s control, the Tribunal accepts that the applicant had concerns about her brother’s health and her father’s health for a period in late 2016 and early 2017. The Tribunal also accepts that the applicant was having relationship difficulties with her partner at that time.  The Tribunal also accepts that the applicant was concerned about her academic performance during that period.  However, it was within the applicant’s control to seek assistance from her education provider and seek appropriate medical assistance and treatment. 

7. The Tribunal notes the report of Mr Crouch dated 1 June 2017 stated the applicant “may” meet the clinical diagnosis of ‘Adjustment Disorder’ and commented that the applicant’s stressors “were likely to have overwhelmed her” and her mental health was “a large factor in her not enrolling in her studies in February 2017”. 

8. The Tribunal gives some weight to this opinion in favour of the visa not being cancelled.  However, Mr Crouch is not a psychologist or psychiatrist, and the applicant did not undertake any treatment as Mr Crouch recommended.  Accordingly, the weight to be given to the report is minimal.

   Past And Present Behaviour Of The Visa Holder Towards The Department

9. There is no evidence to indicate the applicant has not been truthful or co-operative towards the Department.  The Tribunal gives this factor some weight towards the visa not being cancelled.

   Whether There Would Be Consequential Cancellations Under S.140

10. This factor is not applicable.

    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

11. Cancellation of the visa would lead to the applicant being given a period of time to lawfully depart Australia, and if the applicant failed to do so she would be liable to detention.  However, this is the statutory consequence of failing to depart Australia after cancellation of a visa, and the Tribunal gives this factor no weight in favour of 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

12. There is no evidence to indicate that any international obligations would be breached as a result of the cancellation.

    If It’s A Permanent Visa, Whether The Former Visa Holder Has Strong Family, Business Or Other Ties In Australia

13. This factor is not relevant.

    Any Other Relevant Matters

14. There are no other relevant matters.

    Conclusion

15. The Tribunal has weighted the relevant factors in regards to the exercise of the discretion whether or not to cancel the visa.    Having carefully considered the factors, the Tribunal is satisfied the evidence preponderates in favour of exercising the discretion not to cancel the visa, with particular weight given to the fact that the applicant enrolled in a registered course of study in May 2017 and has continued to study successfully since May 2017. The applicant has completed a significant amount of the Bachelor of Business course in which she is currently enrolled.

16. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

17. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Gregory Sarginson
    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.