Dao (Migration)

Dao (Migration) [2019] AATA 1011 (10 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Ngoc Lan Dao
CASE NUMBER:  1706453
HOME AFFAIRS REFERENCE(S):           BCC2016/4316132
MEMBER:Helen Kroger
DATE:10 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 10 January 2019 at 9:41am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – changed to Vocational course – difficulties adjusting to cultural and social differences – application for a Partner visa – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 March 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).
The applicant, Ms Dao, a Vietnamese national, was granted a visa on 24 February 2014 to study in Australia.
On the 21 February 2017, Ms Dao was sent a Notice of Intention to Consider Cancellation of her student visa inviting her to comment on a potential breach of condition 8202 which was imposed on her visa. The applicant provided a statement of explanation to the Department on 2 March 2017.
The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed the grounds for not cancelling the 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.
The applicant appeared before the Tribunal on 8 January 2019 to give evidence and present arguments. The applicant was not represented by an appointed agent or lawyer.
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:
·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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant arrived in Australia on 5 March 2014 having been granted a TU-573 Higher Education Sector visa for the purpose of studying for a Bachelor of Accounting. The applicant completed a General English – Elementary, Intermediate and Advanced course, a period of study from 17 March 2014 to 10 October 2014. She was enrolled for English for Academic Purposes (EAP) for the period 13 October 2014 to 19 December 2014, followed by a Certificate iv in Accounting, Diploma and Bachelor of Accounting, and claimed at hearing that she didn’t have enough confidence to continue her studies. She explained that she did not complete her EAP as she was shocked by the differences in Australia to that she was accustomed to in Vietnam and struggled to come to terms with the cultural and social differences. She struggled to adapt and stopped attending classes. At hearing she claimed that she did not make any attempt to find out about the possibility of deferring and acknowledged that she had made a mistake in not attending class. At hearing she told the Tribunal she was not confident with the choice of course that she was enrolled in and in July 2015 she enrolled in a Certificate 111 in EAL and Certificate iv in Business. She completed the EAL but did not continue following the completion of this English course.
She claimed that the “receptionist” from Oxford where she was enrolled, was making calls to her which she interpreted as threatening, and asserted that she advised her that she would be deported if she did not attend classes. The applicant indicated that her parents received communications from the College as well and told the Tribunal that this adversely affected the way in which she dealt with the situation. The applicant confirmed that she was not enrolled in a registered course of study and accordingly, does not comply with condition 8202(2).
On the evidence before the Tribunal, including the applicant’s admission during the hearing along with her explanatory statement earlier submitted to the Department, the Tribunal finds that 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
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 Tribunal has considered the applicant’s evidence provided at the hearing along with the evidence given by the witness to support the applicant’s claims.
The information provided to the Tribunal at the hearing has been considered by the tribunal in its exercise of discretion as outlined below.
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
The applicant is a Vietnamese national who travelled to Australia for the purpose of studying and enrolled at Canberra University initially studying English, which she did not complete, to pursue a Certificate and Diploma of Accounting. She submitted that she found it difficult adjusting to the country differences and only completed elementary English not EAP, and stopped attending classes. Her parents were supporting her financially and explained that she didn’t have anyone to support her though this adjustment period, becoming depressed.
She subsequently enrolled in courses at the Central Australian Institute of Technology Pty Ltd in July 2015 where she completed Certificate 111 in EAL between 13 July 2015 and 10 January 2016 but did not commence the Certificate iv in Business she was enrolled in from 11 January 2016. The applicant did not dispute the Department’s finding that she had not been enrolled in a registered course of study since 25 January 2016.
The applicant indicated during the hearing that she had thought about returning home but decided that she wanted to stay to “try it”. She submitted that she did not attempt to defer her studies as she didn’t know about that possibility and there is no indication that she sought any advice on possible deferment. She explained to the Tribunal that she had made a mistake by not attending classes. An individual who was identified by the applicant as a “receptionist” contacted her to advise her that she would be deported if she did not attend classes. This contact was interpreted by the applicant as a threat which she did not positively respond to. The applicant provided no evidence to suggest that she contacted appropriate authorities at either the College or the Department to explain the difficulties she was facing. No medical documentation was submitted to indicate the applicant’s state of health at the time.
The applicant has submitted that she wishes to stay in Australia so that she can study to improve her employment prospects. There is no evidence before the Tribunal to indicate that the applicant has carefully considered her career choices and what specific studies she would like to undertake to improve her employment prospects.
The Tribunal accepts that the applicant commenced and completed Elementary English and Certificate 111 in EAL, which concluded on 10 January 2016, however given the significance of the period in which she was not enrolled in a registered course of study, and the fact that she did not inform the Department or her course provider, the Tribunal finds that these considerations outweigh any weight given in favour of not cancelling the applicant’s visa.
The extent of compliance with visa conditions
There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal is mindful of the significance of the breach. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant in her explanatory statement, acknowledged that she had made a mistake in not attending classes due to the cultural shock, the stress and homesickness she suffered, and her difficulty in adjusting to life in Australia. She indicated that if she was to be given a second chance, that she would complete a course that would improve her employment prospects. When asked what area of study she was interested in, the applicant was not definitive in her response, suggesting a possible interest in the “beauty” area.
The applicant told the Tribunal that she had married in Australia in May 2017, and had submitted an application for a Partner visa in September 2018. She was asked what the consequences would be for her if her student visa was cancelled, and she did not indicate any concerns held, should that eventuate. She explained that she is financially supported by her husband who she shares a residence with in Melbourne. Before her marriage, she was financially supported by her parents.
The Tribunal has had regard to these personal circumstances and appreciates that a cancellation would cause some hardship as the applicant has married and claims to live with her Partner. The Tribunal has considered her submission that she submitted an application for a Partner’s visa in September 2018 and accordingly, would have the option to apply for a Bridging visa, should the student visa be cancelled. The Tribunal has considered the emotional and psychological hardship that may be potentially caused, however the Tribunal gives more weight to the significance of the breach, the time that has elapsed since the applicant was enrolled, than the hardship potentially caused to the applicant and her Partner.
Circumstances in which ground of cancellation arose
The applicant submitted to the Tribunal during the hearing the circumstances around the period when she did not enrol. She claims that she found it very difficult to adjust to life in Australia with significant cultural differences, and that she didn’t have anyone in Australia who could emotionally support her during this time. Whilst she commenced her English courses, she indicated she found it difficult and lost the confidence to continue with her studies. She explained that she must have been depressed as she didn’t want to talk to anyone and found the phone calls from the College threatening, when they called her to tell her that she would be deported if she didn’t attend class. These calls had an adverse effect on her state of mind, reinforcing the challenges she faced in adjusting to different circumstances in Australia.
The applicant continued to receive financial support from her parents. Whilst the applicant submitted the difficulty she faced in adjusting to changed cultural circumstances, there is no evidence before the Tribunal to indicate that she sought any professional advice or counsel to assist her, nor is there any evidence to indicate that she considered returning home or deferring the course to address the challenges she faced. The applicant acknowledged during the hearing that at no stage did she consider, or indeed contact the Department, to canvass any options.
Given the circumstances as outlined above, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the period in excess of twelve months in which the applicant was not enrolled in a registered course of study. As such, the Tribunal finds that these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.
Past and present behaviour of the visa holder towards the department
There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.
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
The applicant indicated that she has previously submitted a Partner visa application in September 2018 and there is no consequential effect arising from this decision that has bearing on consideration of that application.
Whether any international obligations would be reached as a result of a cancellation
There is nothing before the Tribunal to indicate there are international obligations to consider.
Any other relevant matters
Whilst the Tribunal is not unsympathetic to the applicant’s wish to resume studies so that she can improve her employment prospects, there is no evidence before the Tribunal to indicate that the applicant sought assistance, counsel or guidance upon her arrival in Australia, to assist in her adjusting to the different circumstances she found in Australia. It is not unreasonable to presume that most students would need to undertake a period of adjustment when travelling overseas for study, and that should that adjustment be too difficult, that the necessary inquiries would be made to address the circumstances. It is also not unreasonable to expect that the applicant, would communicate that with the appropriate authorities, in an endeavour to consider possible courses of action.
Whilst the applicant claims that she wishes to resume studying to improve her employment prospects, she has not provided the Tribunal with compelling evidence to indicate the area of study she wishes to pursue or indeed what Colleges or Universities she has considered for future enrolment.
The Tribunal has considered all the evidence before it including the evidence provided by the applicant at hearing, however the breach is significant. As a visa holder bound by the conditions on the visa, the applicant made no attempt to inform the Department or rectify the situation. The fact that she found it particularly difficult to adjust to the different circumstances and lifestyle she found on arriving in Australia does not explain why she has only completed two English courses in a little over 18 months since her arrival in Australia in 2014.
The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the breach in excess of 12 months is significant in the context of a student’s study period and the fact that she would be well aware of the expectations placed upon her, along with the fact that she made no attempt to either seek a deferral and attempt to go home, nor did she make any attempt to contact the Department.
As such, considering the circumstances as outlined by the applicant druing the hearing, the Tribunal concludes that the visa should be cancelled.
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Helen Kroger
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.

[2019] AATA 1011

10 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice