Dang (Migration)

[2024] AATA 3715

Dang (Migration) [2024] AATA 3715 (23 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ngoc Giang Nam Dang

REPRESENTATIVE:  Mr Abraham Michael ISHKHANIAN

CASE NUMBER:  2317608

HOME AFFAIRS REFERENCE(S):          BCC2023/5489976

MEMBER:Denise Connolly

DATE:23 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 23 September 2024 at 4:12pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – mental health issues – multiple course cancellations – applicant left Australia – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 362
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 October 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa pursuant to s 116(1)(b) of the Act on the basis that the applicant was found not to have complied with a condition of his visa. 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 was represented in relation to the review by a legal practitioner, until the day of the scheduled hearing when he informed the Tribunal that he was no longer acting for the applicant.

4. On 26 August 2024, the Tribunal wrote to the applicant and invited him to appear before the Tribunal to give evidence and present arguments at a hearing to be held on 17 September 2024 at 9:00 am. The applicant was advised in the hearing invitation that the Tribunal has considered the material before it but is unable to make a favourable decision on this information alone. The applicant was also advised that the Tribunal will only change the hearing date for a good reason and that if he is unable to attend the hearing on this date he should contact the Tribunal immediately. The applicant was also advised that if he fails to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it. The hearing invitation was emailed to the applicant using the authorised recipient’s email address, which was provided to the Tribunal in the application for review form. The authorised recipient was also the applicant’s representative, a legal practitioner.

5. On 3 September 2024, the applicant’s representative wrote to the Tribunal, advising that the applicant had left Australia and so could not attend the hearing in person. The Tribunal agreed to hold the hearing by video, using MS Teams, and wrote to the applicant on the same day to confirm this.

6. On 10 September 2024, the applicant’s representative wrote to the Tribunal and requested that the hearing be postponed so that the applicant’s representative could have 10 working days to provide supporting documents. It was submitted that this was required because the applicant had left Australia and he requires more time to obtain documents, as it is more difficult from overseas.

7. The Tribunal considered this request but formed the view the hearing should proceed and it would discuss with the applicant at the hearing the documents he was intending to obtain. On 10 September 2024, the Tribunal wrote to the applicant and advised that it would discuss with him at the hearing whether it is appropriate to give him additional time to provide any supporting documentation. It advised that the hearing would proceed as scheduled, on 17 September 2024 at 9:00 am (NSW time). The applicant was given instructions as to how to dial in by phone, to participate in the hearing. The applicant was reminded that he must inform the Tribunal, as soon as possible, if he could not participate in the hearing. He was also reminded that if he did not participate in the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it.

8. The applicant did not dial in to appear before the Tribunal on 17 September 2024 and did not contact the Tribunal to explain his non attendance. At the time of the scheduled hearing the Tribunal attempted to make contact with his representative, but was told the representative was unavailable. The Tribunal officer left a message with the representative’s assistant regarding the hearing.

9. It was then drawn to the Tribunal’s attention that the representative had emailed the Tribunal, immediately before the hearing was due to commence, to advise they no longer acted for the applicant. They provided a contact phone number for the applicant.

10. The Tribunal tried twice to contact the applicant using the phone number provided however there was no answer. Nor had the applicant attempted to join the MS Teams hearing at any stage during the period 8:45 am to 9:35 am. The Tribunal notes the applicant has made no attempt since 17 September 2024 to contact the Tribunal to explain his failure to participate in the hearing or to provide further evidence. The Tribunal is satisfied the applicant was aware of the hearing but did not attend. Nor did he provide any explanation for his failure to attend. It is of the view the Tribunal has made reasonable attempts to contact the applicant.

11. The Tribunal finds the applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend. It finds the applicant did not contact the Tribunal after the scheduled hearing time to advise the reason he did not attend the hearing.

12. The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing. In making this finding the Tribunal relies on the invitations to attend the hearing and the emails dated 26 August, 3 and 10 September 2024 sent to the applicant’s authorised recipient before they ceased acting for the applicant. All emails were sent to the email address provided by the applicant in the Application for review form. There is nothing before the Tribunal to indicate that the emails were not delivered.

13. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it, as it is empowered to do under s.362B of the Act.

14. In these circumstances the Tribunal considers that the applicant was aware of the scheduled hearing and has had a fair opportunity to provide relevant information. It has considered the suggestion that there may be further documentation for the applicant to provide. However it notes the applicant did not take the opportunity to discuss that information at the scheduled hearing. He has not contacted the Tribunal since to request further time to provide more information. In these circumstances, the Tribunal makes its decision having regard to the information before it, including the information provided by the applicant to the Department and the Tribunal.

15. 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

16. 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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

17. On 3 September 2024 the applicant provided to the Tribunal a copy of the delegate’s record of decision which included the following information.

18. The applicant is a 21 year old male citizen of Vietnam. He was most recently granted a student visa on 25 April 2022 to undertake further study in Australia, having completed a High School Preparation Course in 2018 and 2019, High School Preparation in 2019 and 2020 and part of a UTS Foundation Studies (Extended) course in 2022. This visa was subject to among others, condition 8202.

    Did the applicant comply with Condition 8202?

19. 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 full time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the 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)(i), and

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

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

21. On 25 September 2023, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, as the applicant was not enrolled in a course of study. The applicant was informed that the Department has access to the Provider Registration and International Student Management System (PRISMS), which provides the Confirmation of Enrolment (CoE) and study records of international students registered to study in Australia. He was informed PRISMS indicated that he had not been enrolled in a registered course since 30 August 2022 and therefore had not complied with the requirements of condition 8202(2)(a).The applicant was informed that this may be a ground for cancellation of his visa and he invited to comment.

22. The applicant responded, claiming that he had taken a break from his studies for a year due to his mental health and struggle to study. He claimed to have consulted a psychiatrist. He noted that he had been studying in Australia since 2018, and diligently paid all tuition fees and taxes on time.  He submitted that he maintained a clean record in terms of legal compliance as he had not committed any criminal offences during his stay in Australia. He stated that he was actively pursuing education and planned to enrol in a new university program starting in January (2024). He claimed that he had adhered to all other visa conditions, including those related to work, he had not violated any conditions and had always sought to remain in full compliance with the terms of his student visa.

23. The applicant later provided to the Department a psychological assessment report prepared by Mina Candalepas, dated 5 October 2023, who recorded that the applicant had reported to her that he had motivational issues with respect to subject matter, psychosocial stressors relating to pressure from his parents to undertake study in a certain subject area, his parents’ separation when he was aged 18, and cultural pressure to please his parents. He reported to her that he had not consulted a psychologist previously.

24. In considering the applicant’s response, the delegate found the applicant’s non-enrolment in a registered course for over 13 months was not in line with the purpose of a student visa. She noted that a series of CoEs were cancelled due to the applicant’s non-commencement of studies, the applicant leaving providers and transferring to other providers, disciplinary reasons, unsatisfactory attendance and unsatisfactory course progress. She found the non-compliance with condition 8202 for 13 months to be significant. She accepted the applicant and his immediate family may experience some hardship if the visa is cancelled but noted the psychologist’s report was largely based on self-reporting. She was not satisfied evidence had been submitted to indicate the applicant made attempts to address his mental health concerns during the non-enrolment period commencing from 30 August 2022. She was not satisfied his claims were satisfactory justification for the extended period he was not enrolled in a registered course. Overall, she was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

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

    Consideration of the discretion to cancel the visa

26. 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’.

    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

27. The applicant is no longer onshore so he would need to travel to Australia. The Tribunal has considered the applicant’s purpose for travelling and staying in Australia. He indicated, at least in October 2023, that he wanted to return to study and would enrol in a course due to commence in January 2024. However he has not provided any documentary evidence to support this claim.

28. It is not clear to the Tribunal whether the applicant continues to seek to return to Australia to study. There is no evidence that he has enrolled in a registered course. On the evidence before it, the Tribunal is not satisfied the applicant intends to travel to Australia, or that there is a compelling need to travel to and remain in Australia.

29. Overall, the Tribunal gives this factor weight in favour of exercising its discretion to cancel the visa.

    The extent of compliance with visa conditions

30. The applicant did not comply with condition 8202(2) as he was not enrolled in a registered course of study from 30 August 2022 to 19 October 2023, a period of over 13 months. The Tribunal is of the view this is a significant period, given the purpose of the student visa.

31. There is no evidence before the Tribunal that the applicant has not complied with any other conditions of his visa.

32. Given the significance of the period during which the applicant was not enrolled, the Tribunal gives this factor weight in favour of exercising its discretion to cancel the visa.

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

33. The Tribunal notes the applicant’s claims about the hardship that would be caused by a cancellation, that his family would be negatively affected and that he is the sole hope for his entire family. The Tribunal wished to discuss these claims as it has some doubts that this is the case, given the applicant’s evidence that his father is a shareholder in an oil rig and his mother is the CEO of a logistics company. The applicant has also claimed he will face substantial challenges resuming his education in Vietnam due to the differences in its quality compared to Australia, and he will have to make sacrifices regarding his dreams and ambitions. However the Tribunal is not satisfied he has adequately explained why this will be the case.  The Tribunal finds the applicant’s claims with respect to this factor unpersuasive.

34. The Tribunal has taken into account the evidence from the psychologist but notes the applicant did not consult her until he received the NOICC. It notes her information is based on the applicant’s self-reporting which has not been tested. It does not accept the applicant  consulted a psychiatrist. It is not persuaded the applicant will suffer psychological or emotional hardship if the visa is cancelled.

35. The Tribunal accepts the applicant’s parents’ probably spent significant amounts of money to fund his study in Australia. However it does not have current evidence as to how a cancellation might cause financial hardship for the applicant or his family.

36. The Tribunal gives this factor neutral weight.

    Circumstances in which ground of cancellation arose

37. The Tribunal notes the applicant’s claim that mental health concerns led to the non-compliance. It notes however that the applicant did not consult the psychologist until he received the NOICC. He has no other evidence to indicate that he sought assistance for mental health issues before receiving the NOICC. The Tribunal is of the view the applicant sought the psychologist report solely to avoid his visa being cancelled. The Tribunal accepts that student visa holders may face challenges and pressures that affect their mental health. However, in this case, it is not satisfied any mental health concerns the applicant might have suffered due to motivational issues with respect to subject matter, psychosocial stressors relating to pressure from his parents to undertake study in a certain subject area, his parents’ separation when he was aged 18, and/o cultural pressure to please his parents, justify the applicant not being enrolled in a registered course for over 13 months.

38. As the delegate noted, if it was the case that the applicant was unable to study due to mental health concerns, he could have contacted his education provider and requested a deferment. The Tribunal has concerns that the applicant merely disengaged in August 2022 and did not return to any study despite holding a student visa. The Tribunal also notes the information in the delegate’s decision record, which he provided, about his non-commencement of studies, his leaving providers and transferring to other providers, disciplinary reasons, unsatisfactory attendance and unsatisfactory course progress, suggest as a student he had a history of disengagement.

39. The Tribunal gives this factor neutral weight.

    Past and present behaviour of the visa holder towards the department

40. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past. The Tribunal gives this consideration neutral weight.

    Whether there would be consequential cancellations under s 140

41. The applicant does not have any dependents on his student visa. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa were cancelled. The Tribunal gives this factor neutral weight.

    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 detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

42. There are mandatory consequences if the applicant’s visa is cancelled and difficulties in obtaining any further visas.

43. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act. He may have difficulties in obtaining further visas in Australia, following the cancellation of his student visa. Under PIC 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s ability to make a valid application for any visa other than those prescribed in reg 2.12.

44. The Tribunal notes the applicant’s information that he has now left the country. Accordingly it is satisfied he will not be detained.

45. The Tribunal gives this consideration neutral weight.

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

46. There are no children who would be affected by a visa cancellation.

47. The Tribunal notes the applicant has now left the country so it is satisfied he will not be seeking protection in Australia.

1. There is no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

2. The Tribunal gives this consideration neutral weight.

   Conclusion

3. The Tribunal has considered the applicant’s circumstances individually and cumulatively. It is of the view there is insufficient evidence for it to be satisfied that there is any compelling need for the applicant to travel to and remain in Australia. It accepts there is no evidence indicating the applicant has not complied with other visa conditions but it finds a 13 month period of non-enrolment to be significant. It is not persuaded the applicant or his family will suffer any hardship if the visa is cancelled. Nor is it persuaded the applicant’s mental health issue were the main cause for the applicant not being enrolled in a registered course for over 13 months. It is of the view the applicant’s study history indicates his disengagement from study in Australia. There are no concerns regarding his behaviour towards the Department. The Tribunal considers the other factors to be of neutral weight.

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

   DECISION

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

   Denise Connolly
   Senior 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.