Dinh (Migration)

[2020] AATA 2698

Dinh (Migration) [2020] AATA 2698 (2 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Trung Hieu Dinh

CASE NUMBER:  1729898

HOME AFFAIRS REFERENCE(S):          BCC2017/3294501

MEMBER:Genevieve Cleary

DATE:2 June 2020

PLACE OF DECISION:  Perth

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

Statement made on 02 June 2020 at 1:54pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – changes in study direction – no compelling need to remain in Australia – passing of family member – 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. This is an application for review of a decision dated 23 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training 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 had not been enrolled in a registered course since 4 August 2017, and there were no grounds to not cancel 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.

3. The applicant appeared before the Tribunal on 4 November 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 assisted in the review by a migration agent.

5. Prior to the hearing, the applicant sent to the Tribunal a copy of the Decision Record of the Department.

6. At the hearing the applicant provided to the Tribunal:

   ·A summary of the applicant’s enrolments;

   ·Confirmation of Enrolment 82BBD492  - Certificate III in Travel, to commence 26 September 2016;

   ·Confirmation of Enrolment 82BBDF56  - Certificate IV in Travel and Tourism, to commence 10 April 2017;

   ·Confirmation of Enrolment 8BC0E470 – Advanced Diploma of Tourism Management, to commence 3 July 2017;

   ·Enrolment offer for the Bachelor of Accounting, to commence 20 January 2020, finishing 2 December 2022 at Group Colleges Australia.

7. Subsequent to the hearing, the applicant provided to the Tribunal:

   ·Confirmation of Enrolment 773C8E80 for English Language Programs (beginner to advanced) to commence on 16 November 2015 and to be finalised on 24 June 2016;

   ·Confirmation of Enrolment 87896C70 for English Language Programs (beginner to advanced) to commence 25 July 2016, and to be completed by 30 September 2016;

   ·Confirmation of Enrolment 89BB0B464 English Language Programs (beginners to advanced) to commence on 12 December 2016 and to be completed by 27 January 2017;

   ·Confirmation of Enrolment 89BAFB 27 for English Language Program (beginner to advanced) to commence on 16 January 2017 and to be completed by 17 February 2017;

   ·A letter confirming enrolment at the Academy of English for all of the above courses, and

   ·Confirmation of Enrolment B1280A24 for Advanced Diploma of Business to commence on 18 November 2019, and to be completed on 15 November 2020.

8. The Tribunal has also had regard to the Department file.

9. 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

10. 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?

11. 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).

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

13. The applicant agreed at the hearing that he was not enrolled in a registered course at the time his visa was cancelled.

14. 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

15. 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, whether the visa holder has a compelling need to travel to or remain in Australia

16. The applicant came to Australia because he wanted to study travel and tourism here.  He arrived in Australia on 2 November 2015 on a Student visa.  His English was limited so he started an English course, which he did not complete. He said this was because when he attended the course there were some issues which effected him emotionally and psychologically. These are discussed below.

17. He wanted to study travel and tourism because he wanted a certificate to assist in obtaining a job in Vietnam. He wanted to work in a hotel as a manager.  The applicant had not worked in Vietnam prior to coming to Australia, because when he finished high school he wanted to go overseas for further education. He chose Australia because he knew that a qualification from here would enable him to find a job.

18. The applicant lived with his parents in Vietnam. They run restaurants.  He also has a younger sister, who lives with his parents and his grandparents. The applicant is not in a relationship in Australia and does not have any family in Australia.

19. The Tribunal is satisfied that the applicant had a reasonable reason for wanting to come to Australia, as many students see the value in a qualification from another country, particularly one in English, and particularly so when that qualification is in tourism management. Therefore, the Tribunal is satisfied that the applicant had a compelling reason to come to Australia.

20. However, the subsequent course the applicant’s education has taken in Australia calls into question whether he has a compelling need to remain here.

21. The applicant was enrolled in a Certificate III in Travel, to commence on 26 September 2016. He was then to undertake the Certificate IV in Travel and Tourism, commencing on 10 April 2017, however, he withdrew from both of those courses. He was also enrolled in an Advanced Diploma of Travel and Tourism Management, however, this enrolment was cancelled.

22. The applicant first commenced when he came to Australia an English course, commencing 16 November 2015.  The course was to go for 60 weeks.  He completed the 60 weeks, however he did not pass the certificate, because his English was assessed as being not good enough.  Therefore, after that, he continued to attend another English course, which was divided into different sections, each of 5 weeks.  He told the Tribunal he does not recall how many sets of 5 week units he completed.  He agreed he was still studying English in December 2016. He cannot recall if he was still studying English in June 2017.  The applicant was due to commence the Certificate III in Travel on 26 September 2016 however he did not do so because he was busy studying English.  He had lost the Confirmations of Enrolment at the time of the hearing, however he provided them to the Tribunal after the hearing.

23. Each English course cost him about $2,200 per 5 week course. When the Tribunal put to him that that was then at least $10, 000 for 6 months, he said it was too long ago to recall exactly how much he had paid. He said that his agent paid for the 60 week course, and he paid partially.  He could not explain why his agent paid the school fees; he suggested that they used the money for his future college to pay the English course.  He cannot recall how much he, or his parents, paid to the agent initially.  Even when asked was it a little or a lot, say in the $10,000’s he said he could not recall – he said the money came from his parents. 

24. The applicant ceased study, the reasons for which are discussed below. As outlined above, the applicant has provided the Tribunal with a number of different confirmations of enrolment. The applicant provided to the Tribunal on the morning of the hearing enrolment confirmation for a course in accounting.  He had applied to enrol in that course on the morning of the hearing.  He thought that the course would be helpful to assist him in getting a good job in Vietnam.  He was asked why this morning, and he said that it was because he had been shopping around, and this morning he decided this was the right course. He was asked why he had not ‘shopped around’ earlier, and he said that it was because it had been difficult to enrol in any institution due to the cancellation, and until now he is still waiting for a decision.  He also said that he chose an accounting course when he first came to Australia, but after some time he explored the job market in Vietnam and decided not to go ahead, but when he was waiting for the Tribunal’s decision he reconsidered, he thought that this course suited him.  That, it is noted, is inconsistent with his earlier evidence that he came to Australia to study, and was enrolled in, tourism courses.

25. It was put to him that an accounting course may not assist him in gaining a job in tourism – he said that tourism is booming in Vietnam, and the accounting course will assist him in getting work in it. I confirmed that that is what he meant, and he agreed. I provided him an opportunity to expand on this, and he said because tourism is doing well, an accounting certificate will assist him to get a job in a hotel as accounting skills can assist in managing the cash flows of the business.

26. Also subsequent to the hearing, and more recently, the applicant provided to the Tribunal a confirmation of enrolment for an Advanced Diploma in Business. This appears to have overtaken the confirmation of enrolment for the accounting course. While it is possible to say that both accounting and business qualifications may assist in a general sense, the applicant working in the tourism industry in a hotel, the change from a specific qualification in tourism and tourism management, to accounting and then to business appears to be a very wide approach to what is required for somebody starting out in the tourism industry.  It is unlikely that the applicant would be competitive as a young graduate in the tourism industry or in a hotel with an accounting or business qualification, as opposed to an actual qualification in tourism management. 

27. The Tribunal accepts that young people do not always know, leaving school, where their future career intentions lie, and may be satisfied that changes to courses are reasonable in some circumstances.  The applicant changed from tourism management to accounting. His justification for that change was that, while he was still interested in tourism, he was of the view that accounting would assist him running a business like a hotel. It was not clearly explained at the hearing why he could not return to the original courses in which he was enrolled, which are directly related to tourism. The reasons given for the enrolment in the accounting qualification, and the timing of that enrolment suggests that the applicant had more of a desire to show that he was enrolled in a, and any, course, rather than to become qualified in tourism management.

28. In any event, there is now a change from accounting to business with no explanation as to why. In combination, the changes from tourism to accounting to business suggest that the applicant does not have any real plans in relation to his future, or how his study can assist his future. One of the purposes of a Student visa is to gain a qualification in Australia that will assist the applicant in future career prospects.  The Tribunal is not satisfied that the applicant has shown the Tribunal that any of the courses he now wishes to undertake, should his visa be granted, have any value to his future prospects when he returns to Vietnam.  Even taking into account the fact that people may change courses, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia, and this weighs against his Student 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

29. The applicant said that he got news that his maternal grandfather had cancer in 2017. The cancer was in his kidneys.  The applicant stayed home and kept thinking about it; he stopped schooling.  He did not receive any certificate or qualification from this English course because he gave up because of his grandfather’s health condition.

30. When he heard about his grandfather he did not go home to visit him, because during that period, his visa was cancelled, so he had to stay where he was.   When he received the news about his grandfather he was stressed, and he did not want to study any longer.  He was asked how long it was between hearing about his grandfather, and his visa being cancelled.  He could not recall.  He recalls that he was still studying when he heard the news, but it was about 3 months after that the visa was cancelled.  It was put to him that he therefore had the opportunity, while still on the Student visa, to return to see his grandfather, but that he did not. He told the Tribunal that it was because he wanted to keep on with his education that he could not go back home; he wanted to go back to school.  He did not even consider going for a brief time to see him.  This was because he was worried that once he came back, he would not be allowed to return to Australia, because he had stopped studying. The Tribunal assumes that the applicant meant by this that if he had have returned home he would have then had to stop studying and his visa maybe cancelled as a result. It is noted that the applicant did not make contact with the Department in an attempt to forestall any cancellation, should he need to return home.

31. It was difficult to be satisfied as to a time frame of the applicant’s course of study and hearing his grandfather was ill. Given his last enrolment was 4 August 2017, and the applicant said that his visa was cancelled some three months after hearing his grandfather was ill, being 23 November 2017, it would seem that the applicant stopped studying very quickly after he first heard about his grandfather.  The Tribunal accepts that news of illness in the family when one is overseas can be very stressful. However, the Tribunal was not provided with any further details about the applicant’s grandfather other than he had cancer in his kidneys, a fact which the applicant was notified of, some time in 2017.   Neither has the Tribunal been provided with any information about the symptoms the applicant was feeling, other than he said he said he stayed at home.  It does not appear that the applicant sought counselling or sought the assistance of a doctor.  It is unclear how long the symptoms lasted.

32. The applicant has worked while being in Australia.  He has done so to cover his expenses. He has worked in a kitchen, the same kitchen the whole time. He cannot recall the start date, but it was in December 2015. The last time he worked there was in 2017, and he stopped work because his visa was cancelled.  Therefore, it appears that the applicant’s psychological stress cannot have been so bad that he was unable to attend work. On his own evidence, he ceased working because of his visa requirements rather than the stress upon him because of his grandfather.

33. The applicant’s evidence that he wanted to continue studying and therefore did not go to see his grandfather, but that he stopped studying when he heard about his grandfather due to stress over the news, was difficult to reconcile. 

34. It is also noted that the applicant had, by the time of hearing about his grandfather, already undertaken a year long course in English, unsatisfactorily.  He was embarking on further English courses.  The confirmations of enrolment provided to the Tribunal show that in all, the applicant held enrolments for English courses between November 2015 to February 2017. It is noted that the delegate of the Department, having consulted the Provider Registration and International Student Management System, found that the applicant had not been enrolled in a registered course of study since 4 August 2017. Accordingly, the Tribunal accepts that the applicant held enrolments to that date. From the applicant’s evidence at the Tribunal, that was in English courses.

35. There is nothing before the Tribunal which shows the applicant’s progress through the subsequent English courses in 2017.  The Tribunal is satisfied that at least for some of 2017 the applicant was struggling in his studies in English. As a result, he was not able to commence the courses for which his Student visa was originally granted, being courses in tourism.  Given the lack of any detail as to the extent and time and time frame of the stress under which the applicant says he was when he heard about his grandfather, the fact that there is no evidence before the Tribunal that the applicant sought assistance, either from a medical or counselling service or the Department, and the fact that the applicant for at least some of 2017 was already struggling with his studies, the Tribunal is not satisfied that the stress the applicant was feeling over the news of his grandfather was the only reason he gave up his studies.  Therefore, the Tribunal cannot be satisfied that, while the illness of his grandfather was out of his control, it was the only or indeed predominant reason why he ceased his studies.  On that basis, the Tribunal is not satisfied that the circumstances of the breach weigh in the applicant’s favour.  In the Tribunal’s discretion, therefore, that factor weighs heavily in favour of his visa being cancelled.

36. I am satisfied that the cancellation was not as a result of a relationship breakdown or family violence.

    The extent of compliance with visa conditions

37. There is no evidence before the Tribunal to suggest that the applicant has been in breach of any other visa conditions and this is to be given some weight in his favour. The length of the breach, between the time of his last recorded enrolment being 4 August 2017 to the cancellation of the visa on 23 November 2017 is a matter of months. The length of time of the breach is minimal and therefore the time of noncompliance itself does not weigh against him. However, he did stop going to classes and his enrolment was cancelled.  He did not contact the Department or provide them with details of his change in circumstances.  While failing to contact the Department is not a specific breach itself, the lack of contact during the period of the breach does not ameliorate the breach itself and therefore the fact of the breach weighs a little against the Student visa not been cancelled.

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

1. The applicant told the Tribunal that if the visa remains cancelled his hardship will be that he will have an issue with his education and work in Australia.  He explained that if he does not have a visa, he does not have any work rights. He appeared to focus on lack of work as a hardship. The Tribunal accepts that the lack of a visa would mean that the applicant would not be entitled to remain and work or study, however, as the focus of a Student visa is study, the Tribunal can only give a little weight in favour of the applicant for any hardship regarding his desire to work.

2. In addition, he said it would be disappointing to his relatives and other family when they hear he has to leave Australia.  The Tribunal accepts that the cancellation of a visa is disappointing and that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study. The Tribunal gives this consideration a little weight towards the visa not being cancelled.

   Past and present behaviour of the visa holder towards the Department

3. The Department sent to the applicant a Notice of Intention to Consider Cancellation (NOICC) on 27 October 2017. In it the delegate noted that the applicant was last enrolled in a course on 4 August 2017.

4. The applicant said that he did respond to the NOICC, however he seemed to be confused about whether this was his application for review, or his earlier response to the Department.  He asked for some time to think about it, which he was given in the hearing.  He then agreed that he did not reply to the NOICC, he said because he only received the letter saying they were cancelling his visa, not the NOICC itself.  The Tribunal showed him email communication between he and the Department on 6 November 2017, where he requested further time to respond to the NOICC. He agreed that he had emailed the Department after he received the NOICC. I made the point to him that 6 November was prior to the actual cancellation of his visa, therefore, the Tribunal was satisfied that he was notified of the intention to cancel, prior to the cancellation, and the Tribunal was satisfied that he was aware of that intention, prior to the cancellation.  His explanation as to his eventual lack of response to the NOICC was that it was hard for him to find somewhere to enrol, and he was thinking about waiting to apply to the Tribunal. The visa was cancelled on 23 November 2017.

5. That explanation suggests to the Tribunal that the applicant had had no intention of providing any explanation to the Department.  While that behaviour itself is not adverse behaviour towards the Department, it does suggest a lack of regard for the process of cancelation, and while there is no indication of specific adverse behaviour towards the Department, this can be given a little weight against him.

   Whether there would be consequential cancellations under s.140

6. This factor is not relevant to this applicant.

   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

7. If the current visa is cancelled, this will result in the following:

   a. The applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

   b.   The applicant will have limited options to apply for further visas in Australia;

   c.   The applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) 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 Requirement 4013 to be met.

8. I give little weight to this consideration in favour of the applicant because:

   ·These are the intended consequences of the legislation when a visa is cancelled under these grounds;

   ·It reflects the seriousness with which the Department takes this type of cancelation ground;

   ·The applicant will be eligible to apply for a bridging visa while he makes arrangements to depart Australia and therefore the likelihood of detention is only in the event that he does not co-operate in applying for a bridging visa.

   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

9. In this case it does not appear that this consideration is relevant as the applicant did not indicate that there was any reason he cannot return to Vietnam and he has not made any claims which would relate to this consideration. The Tribunal places no wait on this in favour of the applicant.

   If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

10. This factor is not relevant to this applicant.

    Any other relevant matters.

11. There are no other relevant factors for matters.

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

    DECISION

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

    Genevieve Cleary
    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.