Dao (Migration)

[2019] AATA 3623

Dao (Migration) [2019] AATA 3623 (21 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Thien Tam Dao

CASE NUMBER:  1904370

HOME AFFAIRS REFERENCE(S):     BCC2019/185364

MEMBERS:Dr Jason Harkess

DATE:21 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa

Statement made on 21 August 2019 at 9:39am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – course enrolment – put studies on hold – health issues – no compelling reasons – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of Vietnam. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 20 February 2019 cancelling his Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 1 February 2016 with an original expiry date of 15 March 2019, providing for more than three years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. Specifically, the visa was granted on the basis that he would enrol in and successfully complete an English course followed by a Master of Advanced Engineering at Monash University.

3. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The Applicant appeared before the Tribunal on 1 August 2019 to give evidence and present arguments.

6. The Tribunal was assisted by an interpreter of the Vietnamese and English languages.

7. For the following reasons, the Tribunal has decided to affirm the decision to cancel the visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicant’s visa required that the Applicant remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 20 March 2018 to 20 February 2019 as the relevant period when the Applicant was not enrolled in a registered course. This amounted to 11 months during which the Applicant was alleged to be in continuous breach of the visa.

2. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s enrolment in a course for which they had previously been enrolled and the reasons for doing so.

   [1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The PRISMS report obtained by the delegate indicated that the Applicant’s course provider, Monash University, had cancelled the Applicant’s enrolment in the Master of Advanced Engineering course (‘the Masters course’) on 20 March 2018 due to the non-commencement of studies.

4. The Department of Home Affairs wrote to the Applicant on 12 February 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

5. The Applicant replied to the NOICC on 19 February 2019 (‘the NOICC response’). In that response, he did not dispute the fact that he had been in breach of his student visa for the period alleged. At the hearing before the Tribunal, the Applicant also conceded that he was in breach of his student visa for the period alleged.

6. Based on the available information and material, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of the visa.

Consideration of the Discretion to Cancel the Visa

1. 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 the Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (‘PAM3’, ‘General Visa Cancellation Powers’). The matters that ought to be considered are specifically listed in PAM3 as follows:

   ·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   ·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

   ·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   ·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   ·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

   ·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   ·whether there are mandatory legal consequences arising from a decision to cancel the visa;

   ·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202

1. In his NOICC response dated 19 February 2019, the Applicant referred to the fact that he came to Australia having graduated with a Bachelor of Manufacturer Engineering at Vietnam National University. That qualification made him eligible for entry into the Masters course at Monash Unviersity.

2. The Applicant further stated that he arrived in Melbourne in March 2016 and began studying English at Monash College as planned. However, he said that he felt lonely and sad being away from his parents and his girlfriend. in July 2016 he returned to Vietnam and got married to his girlfriend. He then returned to Australia after only a few weeks in Vietnam to continue studying, without his new wife. It appears that the Applicant hoped, following marriage, his wife would be better positioned to apply for and successfully obtain an Australian student visa in her capacity as a dependent spouse. The Applicant’s wife subsequently applied for a student visa. However, it was refused.

3. The Applicant stated that, following refusal of his wife’s visa, he was devastated. He sought help from a doctor in relation to the stress he was suffering. In support of that claim, he produced a letter dated 6 November 2016 from Dr Lea Chea, a general medical practitioner based in Australia. Dr Chea observed that in November 2016 the Applicant had ‘significant psychosocial problems.’ She recorded the Applicant’s report to her that he lived on his own, ate only fast foot, missed his wife and lacked a social support network in Australia. She also noted that the Applicant experienced sleeplessness, a loss of appetite, and difficulty in concentrating on his studies. The Applicant stated to Dr Chea that his body weight had decreased by 4 kilograms in the preceding few months and that he felt malnourished. The Tribunal notes that, apart from Dr Chea’s letter dated 6 November 2016, no further medical evidence relating to the Applicant’s health and well-being since that time was been produced to the Department or to the Tribunal.

4. In December 2016, the Applicant’s father unexpectedly fell into a coma. He never recovered from the coma and passed away on 31 December 2016. The Applicant stated that his father’s death contributed to his distress while living in Australia. Apart from the grief that the Applicant and his family were suffering, the Applicant’s family was also presented with difficulties associated with his father’s estate. The Applicant’s father had failed to arrange a will before he died. As a result, the family’s finances and assets were frozen for a considerable period of time. This had an impact on the whole family’s immediate access to financial resources and, it would seem, on the Applicant’s access to financial support from his family while living in Australia.

5. The Applicant said he was compelled to return to Vietnam in June 2017 to assist the family in finalising financial matters relating to his father’s estate. He returned to Melbourne in July 2017. At some point late in the second half of 2017, it seems that issues arose with respect to his progress in the English course at Monash. Staff at Monash had advised the Applicant of his need to undertake further studies in the English before he would be deemed eligible to being the Masters course. According to the Applicant, if he undertook the further English studies, this would delay his plans to commence the Masters course. It would also create more financial burdens arising from the additional tuition fees. The Applicant stated he did not want to ask his mother for more money. In the end, he decided to abandon his studies at Monash.

6. The Applicant stated in his NOICC response that he then decided to have a ‘short break’ to balance his life and study. This appears to be how he spent most of 2018, giving rise to the continuous breach of Condition 8202. He says that he spent his time practising his English and studying information technology which was an area of interest to him. The Tribunal notes that his studies relating to information technology at this time were not undertaken by the Applicant as a formal registered course of study for the purposes of compliance with Condition 8202. The Applicant has also produced no documentary evidence relating to these information technology studies which he says he undertook. The Tribunal considers that these studies, whatever form they may have taken, in no way met his ongoing obligations for the purposes of Condition 8202 of his student visa.

7. At the hearing before the Tribunal, the Applicant largely reiterated the circumstances giving rise to the breach of Condition 8202 of his visa that have been summarised above. It appears that he effectively stopped his formal studies at the beginning of 2018 after he had made the decision to abandon his studies at Monash. As the Tribunal understands his case for overturning the decision to cancel his visa, the Applicant has submitted that a range of factors led to him ceasing his studies. First, there were the emotional difficulties he suffered as a result of being away from his family and his wife. Secondly, there was the unexpected death of his father at the end of 2016, which also caused him considerable distress. Thirdly, there were the financial difficulties associated with the administration of his father’s estate. All of these events, according to the Applicant, in their aggregative effect led to the Applicant ceasing his studies at Monash.

8. While the Tribunal accepts that all of these events occurred, as described by the Applicant, it does not accept this evidence as providing a foundation for the Applicant being excused from complying with his student visa conditions. The personal difficulties described by the Applicant are the kinds of life stressors that everyone must deal with at some point. Non-Australian citizens on student visas in Australia are no exception. Many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they are having to deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the Applicant.

9. In such circumstances, registered course providers and the Department have in place policies that permit the exercise of discretion for compassionate reasons that will allow a student visa holder some latitude in having to deal with a difficult personal situation. The cancellation of an enrolment and the subsequent cancellation of a visa is a last resort. However, the exercise of a discretion to refrain from cancelling an international student’s enrolment, or to refrain from cancelling their visa, is premised on the visa holder taking positive steps to bring their personal issues to the attention of the relevant authorities and by producing evidence that corroborates their claims. In this case, the Applicant did not do so. He neither contacted staff at his course provider, nor staff at the Department, to inform them of the personal difficulties he may have been having. He only drew the Department’s attention to his problems well after the Applicant had decided to have a ‘short break’, and only when he was presented with the prospect of his visa being cancelled.

10. The Tribunal notes that a decision to have a ‘short break’ from studies, as the Applicant himself characterised it, does not amount to extenuating circumstances beyond the Applicant’s control. The Applicant did not claim to be suffering from any kind of debilitating chronic mental health condition during 2018 that prevented him from engaging in studies. Indeed, he was able to work for much of that period and chose to do so. In the course of giving evidence at the hearing, the Applicant stated that he had obtained casual work in Australia at a sheet metal factory due to his background in mechanical engineering. He was working up to 20 hours a week and did so at least until September 2018.

11. It seems that the Applicant considered that he had the prerogative to put his studies on hold indefinitely, without seeking permission from his course provider or the Department before he chose to do so. However, he had no such personal prerogative to exercise when regard is had to the conditions attaching to his student visa. The Applicant’s obligation to remain continuously enrolled in a registered course of study remained was paramount. He has failed to provide a satisfactory explanation for his continuous breach of that condition of his visa.

Purpose of Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis. Moreover, it was primarily granted on the basis of the Applicant enrolling in and successfully completing the Masters course which he chose to abandon before it had even started. The purpose of the visa was not served by the Applicant deciding to take a break from his studies without seeking permission to do so

2. The Tribunal considers that there is no compelling need for the Applicant to remain in Australia. By their nature, student visas are meant to provide non-Australian citizens with temporary residence only for a specific proposed course of study. If the Applicant’s visa had been left to operate, without being cancelled, it would have now expired. The Applicant was afforded a significant amount of time to spend in Australia for the purposes of full-time study to obtain a Masters qualification. In the Tribunal’s view, that purpose has been fundamentally defeated by the Applicant’s own decision-making processes. It is appropriate that the student visa be cancelled.

Extent of Applicant’s Compliance with Visa Conditions

1. The Applicant made some progress with respect to his English studies. However, the Tribunal finds that the Applicant never made any realistic attempts to comply with primary purpose for which the Applicant’s visa had been granted, namely to complete the Masters course. This is a signifcant factor that weighs in favour of cancelling his visa. The Applicant appears to have otherwise been compliant other visa conditions.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and study in information technology, a subject matter which he appears inspired to learn more about. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification. His family will understandably be very disappointed.

2. However, that desire must be tempered with the extent of his non-compliance with the conditions of the visa. It was a student visa which obliged him to prioritise studying in Australia the entire time he has been here. In the Tribunal’s view, he has not provided a satisfactory explanation for failing to comply with that fundamental condition. It seems that he has fundamentally failed to utilise his student visa effectively for the purpose it was designed to serve.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, 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. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of visa conditions.

2. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of Vietnam and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa.

Dr Jason Harkess
Member