Dinh (Migration)

[2019] AATA 6634

Dinh (Migration) [2019] AATA 6634 (10 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Nham Dinh

CASE NUMBER:  1822715

HOME AFFAIRS REFERENCE(S):          BCC2018/1185694

MEMBER:Stephen Conwell

DATE:10 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 10 December 2019 at 11:46am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant breach – purpose of visa not fulfilled – family’s financial difficulties – decision under review affirmed

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

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 July 2018 made by a delegate of the Minister for Home Affairs 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 of the Department cancelled the visa on the basis that the applicant was not enrolled in a registered course and therefore had breached condition 8202 of her visa.

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

4. On 26 June 2018, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate considered the applicant did not comply with condition 8202 of her visa, as the applicant ceased to be enrolled in a registered course. The applicant requested an extension of time in which to respond to the NOICC, which the Department granted to 19 July 2018. Despite being granted an extension of time the applicant offered no further response to the NOICC.

5. The applicant appeared before the Tribunal on 27 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.

6. 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

7. 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?

8. 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.

9. The applicant is a national of Vietnam born on 26 November 1997.  She arrived in Australia in March 2016 as the holder of a Student (TU) 573 Higher Education visa. That visa was subject to condition 8202. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

10. Based on the evidence before the Departmental delegate the applicant was found to have not been enrolled in a registered course of study since 14 September 2017.  The applicant was advised that it appeared she did not meet the requirements of condition 8202(2)(a).  The applicant was then notified by NOICC on 26 June 2018 and invited to respond to that notice in writing. 

11. The applicant did not respond to the NOICC despite an extension of time having been granted. Based on the evidence before her, the delegate was satisfied there is a ground for cancellation of the applicant’s visa under subsection “116(1)(b), breach of condition – 8202 of the Act.”

12. The applicant confirmed at hearing that due to her father’s loss of employment sometime in 2017 she had been unable to continue payment of her course fees and as a consequence her enrolment was cancelled on or about 14 September 2017.  Condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The Tribunal finds that the applicant is not a secondary exchange Student to whom condition 8202(2)(b) might apply. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a registered course (per Liu v MIMIA [2003] FCA 1170).

13. The Tribunal finds that on the basis of the evidence, the applicant ceased to be enrolled in a registered course, and therefore has breached condition 8202 of her visa.

    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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

15. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. The applicant ceased to be enrolled in a registered course of study from 14 September 2017.  This is an indication the applicant was not pursuing the purpose for her travel to Australia; as she was not actively engaged in studies and was not enrolled in any registered course since that date.  The Tribunal considers the breach to be significant, given that the applicant failed to maintain enrolment for approximately 10 months.  The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted. The Tribunal finds that the applicant came to Australia for the purpose of study and gives some weight to this. The evidence before the Tribunal does not indicate the applicant has any compelling need to travel to or remain in Australia.

16. The applicant gave evidence that the circumstances in which the ground of cancellation arose when her father lost his job in Vietnam, which meant that her parents could no longer pay for her studies in Australia. She submitted an translation of an undated certificate from a company, Thanh Gian Proprietary Limited Trading Company stating the company has reduced its staffing levels “since 2017” which has included Mr Ðinh Viết Phú. The Tribunal is prepared to accept that the Mr Ðinh Viết Phú mentioned in the ‘certificate’ is the applicant’s father and that the intent of the document is to confirm his loss of employment sometime in 2017.

17. At hearing the applicant advised that she had not attempted to contact her education provider to discuss her family’s financial difficulties or to seek a deferment of her studies. She advised that neither did she attempt to contact the Department with regard to the change in her circumstances. The Tribunal accepts that the financial difficulties which beset her family in 2017 would have adversely affected the applicant’s studies in Australia, however based on the information before it, the Tribunal is not satisfied the breach occurred in circumstances beyond the applicant’s control.  Again, based on the information before it, neither does the Tribunal consider there are extenuating or compassionate circumstances in this case.

18. The applicant stated that she came to Australia to study and her family is expecting her to complete her studies before returning to Vietnam. The Tribunal finds this claim to be incongruent with the fact that the applicant remained onshore for an extended period without being enrolled in study and without making any attempt to regularise her visa status.

19. Whilst the applicant’s family will suffer some financial loss and the applicant will no doubt be disappointed not to have completed her studies in Australia, the Tribunal notes the applicant has not identified any particular hardship that may be caused to her and/or any family member by the cancellation of her visa.   

20. If the applicant’s visa is cancelled, she will be given a limited period in which she may make plans to leave Australia and she will be limited in her ability to apply for another visa. The applicant has not raised concerns in regards to this. The applicant is not currently in detention and it appears unlikely that she will be detained if the cancellation occurs. The Tribunal therefore gives this factor minimal weight.

21. The Tribunal notes there is no evidence that any family member/s in Australia would be negatively impacted by the cancellation of the applicant’s visa. 

22. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.  The Tribunal is also satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.140.

23. Regarding Australia’s international obligations, the Tribunal is not satisfied the circumstances of this case were such that would engage Australia’s international obligations. There is no evidence submitted of children (or other family members) in Australia whose interests would be affected by the cancellation.  There was nothing to suggest that family violence was a relevant factor.

24. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

25. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that cancellation of a visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Stephen Conwell
    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.