Dinh (Migration)

[2019] AATA 5566

Dinh (Migration) [2019] AATA 5566 (26 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kim Duy Dinh

CASE NUMBER:  1709155

HOME AFFAIRS REFERENCE(S):          BCC2017/808292

MEMBER:Justin Owen

DATE:26 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 August 2019 at 11:54am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary stay – gap in enrolment – applicant seeking different courses – family illness – financial hardship – no deferment of studies sought – 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

1. This is an application for review of a decision dated 19 April 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).

2. The applicant is a national of Vietnam born 21 December 1996.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 1 September 2015 and was subject to condition 8202.  On 30 March 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he had ceased to be enrolled in a registered course since 17 August 2016.  The applicant responded to the NOICC on 13 April 2017.  On 19 April 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.      

3. The delegate cancelled the visa on the basis that the applicant had not complied with the requirements of condition 8202(2)(a) of 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.

4. 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

5. 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.

6. On 4 May 2017 the Tribunal wrote to the applicant and advised it had received an application for a review of the delegate’s decision to cancel his Subclass 573 Higher Education Sector visa.

7. On 7 August 2019 the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues in his case on 22 August 2019. The invitation stated that if the applicant did not attend the scheduled hearing then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 

8. On 20 August 2019 the Tribunal received a completed and signed response to hearing invitation.  The response indicated that both the applicant would not be attending the hearing scheduled for 22 August 2019 and would not be requiring an interpreter.  No reasons were given for declining the invitation to hearing and no request was made to reschedule the hearing.   

9. The applicant did not appear before the Tribunal on the day at the scheduled time and place.  The applicant did not provide any reason for their failure to appear at the hearing.  The applicant did not request an adjournment.  The applicant has not provided any further evidence, submissions or information to the Tribunal between the hearing and decision.  Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5) and the invitation has not been returned to sender.

10. In these circumstances, and pursuant to s.362B of the Migration Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    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. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 19 April 2017. The decision record states that the Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had not been enrolled in a registered course of study since 17 August 2016.  At the time of the delegate’s decision of 19 April 2017 the applicant therefore had not been enrolled for a total of over 8 months. 

14. The Tribunal notes from the decision record that the applicant in his NOICC response did not dispute there were grounds for cancellation.  

15. 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

16. 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’.

17. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia.

18. The Tribunal considers that the purpose of a Student visa is to enable the visa holder to study in Australia.  The Tribunal notes that the applicant was initially granted a Student visa on 1 September 2015.  The Tribunal notes the applicant’s claim during the application process, as outlined in the decision record, that his intended purpose of travel to and stay in Australia was to study.

19. The Tribunal notes from the applicant’s NOICC response of 13 April 2017 (D1, Folio. 8) that he had contacted an education agent to help him apply for a Bachelor of Hospitality course at Academies Australasia and he had been approved for study.  He stated that he had requested to go back to study before he received the NOICC from the Department.

20. The Tribunal notes from the decision record the applicant supplied that the applicant’s claim to intend a new course of study – a Bachelor of Hospitality  - was not in line with his original course pathway for which his visa was granted which was English, Diploma of Business and a Bachelor of Business. 

21. There is no evidence before the Tribunal that the applicant ever actually enrolled in the Bachelor of Hospitality course as he claimed.  The applicant has made no submissions and provided no corroborative evidence to the Tribunal to suggest he has either enrolled in the Bachelor of Hospitality course or indeed any other course of study since the date of 17 August 2016 when the delegate found according to the PRISMS records he had ceased enrolment in a registered course of study.   There is no evidence before the Tribunal of any attempts he has made to seek enrolment in a registered course of study since 17 August 2016.  

22. The Tribunal notes from the decision record that the applicant claimed in his NOICC response that his father was suffering from serious cardiovascular disease which required his mother to resign from her job, caused financial difficulties and adversely impacted his ability to study.  The Tribunal notes the lack of medical evidence before it to corroborate this claim though acknowledges the applicant did send six attachments that claim to pertain to his father’s health but which were unable to be opened.  Given the lack of corroborative medical evidence before it, the Tribunal cannot accept the applicant’s claims that his father’s health issues – and their alleged financial impact - precluded him from maintaining enrolment in a registered course of study.  The Tribunal does not accept that, on the limited evidence before it, these challenges precluded the applicant from maintaining a registered course of study or seeking a deferment of which there is no evidence of. 

23. The evidence before the Tribunal of the applicant’s purpose of his travel to and stay in Australia was for the purposes of study is minimal.  The Tribunal appreciates the applicant’s claims about his father’s health and his assertion that he was enrolling in a Bachelor of Hospitality.  The Tribunal is not however on the evidence before it prepared to accept that the purpose of his travel to and stay in Australia is study. 

24. The Tribunal has taken into account the applicant’s claims in his NOICC response that he has a desire to study and had enrolled in a Bachelor of Hospitality course.  The Tribunal notes however from the decision record that there was no evidence provided to the delegate corroborating this enrolment such as a letter of offer or a Confirmation of Enrolment for the course.  Similarly, there has been no evidence submitted to the Tribunal by the applicant of such an enrolment.  There is in fact no evidence of any further enrolment post 17 August 2016.  No submissions have been made to the Tribunal on this matter since applying for review over two years ago.   The Tribunal on the evidence does not consider the applicant has a compelling need to remain in Australia for the purpose of his studies.   On the evidence before concerning the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor in favour of cancelling the visa.

25. The Tribunal has considered the extent of the applicant’s compliance with any conditions subject to which his visa was granted.  The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of his visa by not being enrolled at a Higher Education Sector level for a period of at least eight months to be substantial.  There is no evidence however before the Tribunal that the applicant has been non-compliant with any other visa conditions beyond his failure to comply with Condition 8202.  On the evidence before it the Tribunal weighs this factor slightly in favour of cancelling the visa.

26. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family should his student visa be cancelled.

27. The Tribunal notes from the decision record that the applicant failed to provide any information relevant to this consideration to the delegate. The applicant has also failed to provide any information to the Tribunal concerning any hardship that may be caused to him or his family if the visa is cancelled. The Tribunal has noted the applicant’s claims in his NOICC response concerning making an application for a Bachelor of Hospitality course. Given there is no evidence before the Tribunal that the applicant is enrolled or indeed has enrolled in any registered course of study since 17 August 2016, the Tribunal does not accept that cancellation of the applicant’s visa will cause any hardship in relation to his studies. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia.  He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia.  The Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date.  The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged.  On the evidence before it concerning the degree of hardship, the Tribunal weighs this factor in favour of cancelling the visa.

28. The Tribunal has considered the circumstances in which the ground for cancellation arose.  At the time of decision the applicant has not provided the Tribunal with any submissions concerning the circumstances in which the ground for cancellation arose.  The Tribunal has noted the reasons provided by the applicant to the delegate in response to the Notice of Intention to Consider Cancellation (NOICC) issued by the Department as outlined in the decision record the applicant provided the Tribunal. 

29. The applicant in his response to the NOICC (D1, Folio.17) as outlined in the decision record states that his family had to deal with major trouble which came about after his father developed serious cardiovascular disease and his mother was left with no choice but to resign from her job and take care of his father.  He claims that his father underwent an operation which cost the family a large amount of money and consequently caused a financial crisis to his family that impacted upon his study in Australia. 

30. As outlined in the decision record the applicant supplied the Tribunal, the applicant stated that in the last few months the situation had improved, his mother had returned to work and his father was recovering well.  He claimed he then decided to return to his studies and contacted an education agent to enrol in a Bachelor of Hospitality course at Academies Australasia.  He claimed that after a few days of assessing his case, the education provider approved his return to study.

31. The Tribunal has considered the claim that the financial hardship caused by his father’s medical expenses and treatment were circumstances that impacted adversely upon the applicant’s ability to study. 

32. The Tribunal notes from the decision record that the applicant provided six attachments in his NOICC response titled ‘Evidences of my father disease’ (D1, Folio. 7-8).  These attachments however could not be opened.  The Tribunal notes the Department contacted the applicant requesting he resend them by 23 April 2017.  The attachments were not re-sent and no response indeed was made by the applicant according to the decision record.  In the absence of any corroborative medical evidence before the Tribunal to support the applicant’s claim, the Tribunal does not accept the applicant’s claims that his father’s medical condition – and the cost of treating his condition – somehow precluded the applicant from maintaining enrolment in a registered course of study. 

33. There is no claim made or evidence furthermore before the Tribunal that the applicant sought any deferral from his studies due to either his father’s poor health, the financial impact his father’s medical treatment had upon himself, or and any subsequent impact this treatment had upon the applicant’s ability to maintain his enrolment in a registered course of study. 

34. The Tribunal notes that holders of a Student visa are required to demonstrate that they have genuine access to sufficient funds to pay for their living expenses, course fees and travel costs.  The Tribunal acknowledges the applicant’s claims that his inability to maintain his enrolment arose due to financial hardship caused by his father’s ill health and subsequent treatment.  There is no evidence before the Tribunal however to substantiate his claim of financial hardship.  There is no corroborative evidence before the Tribunal concerning his father’s alleged poor health and his medical treatment.  There is no evidence before the Tribunal that he sought a deferral from his studies on the basis of these claims.  The Tribunal cannot on the evidence before it accept the applicant’s claim that the circumstances in which the ground for cancellation arose was his father’s ill health, medical treatment and the subsequent financial hardship this caused the applicant.  In the absence of any corroborative evidence pertaining to the claim of financial hardship, the Tribunal gives the claim no weight.         

35. The Tribunal notes the applicant’s claim as outlined in the decision record that he sought a return to study prior to receiving the NOICC from the Department via enrolment in a Bachelor of Hospitality.  As stated in the decision record, at the time of the delegate’s decision there was no information available in the PRISMS records to substantiate this claim.  The Tribunal therefore gives the claim no positive weight. 

36. The applicant furthermore has provided no evidence to the Tribunal of any enrolment in any registered course of study since 17 August 2016, including his claimed enrolment in the Bachelor of Hospitality at Academies Australia.  There is no evidence of a Letter of Offer or a Confirmation of Enrolment before the Tribunal.  In the absence of any evidence from the applicant that the applicant has enrolled in a registered course of study since 17 August 2016, the Tribunal gives the claim no positive weight.             

37. The Tribunal notes that the ground for cancellation arose due to the fact the applicant ceased enrolment with a registered education provider at the Higher Education Sector level and subsequently failed to rectify his enrolment status in an adequate time.  The applicant on the evidence in the decision record had failed to adequately rectify his enrolment situation and the applicant has provided the Tribunal with no evidence that he has rectified this situation since this time.  The Tribunal is of the opinion that the applicant would have been well aware that his student visa contained condition 8202 which required him to remain enrolled in a registered course of study.  The Tribunal is of the firm view that the applicant would reasonably have been aware that his failure to remain enrolled with an eligible higher education provider would have an impact upon his eligibility to continue to hold his student visa.  Even if this was the case, non-awareness is not an excuse for non-compliance. On the evidence before it concerning the ground for which the cancellation arose, the Tribunal weighs this factor strongly in favour of cancelling the visa.   

38. The Tribunal has considered the past and present behaviour of the applicant towards the Department.   

39. The Tribunal has considered the past and present behaviour of the applicant towards the Department.   The Tribunal notes that whilst the applicant did respond to the NOICC, according to the decision record he failed to respond to the Department’s request that he resend his response and the emailed attachments that were unable to be opened.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

40. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

1. The Tribunal has considered whether there are 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 of the applicant’s visa.  There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.    

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

   DECISION

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

   Justin Owen
   Senior 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.