DINH (Migration)

[2018] AATA 1648

DINH (Migration) [2018] AATA 1648 (1 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms THI PHUONG ANH DINH

CASE NUMBER:  1720633

DIBP REFERENCE(S):  BCC2016/2834013 PNJ

MEMBER:David McCulloch

DATE:1 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 May 2018 at 11:06am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – NOICC sent to incorrect address – Pregnancy – Child birth – Period of non-enrolment – Steps for compliance – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 116

CASES
Hasan v MIAC (2010) 184 FCR 523
SZOFE v MIAC (2010) 185 FCR 129

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 March 2017 made by a delegate of the Minister for Immigration 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 on 21 June 1995. The visa that has been cancelled was granted on 16 December 2014 for stay period until 15 March 2019. That visa was subject to condition 8202.

3. On 10 February 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of her visa as she ceased to be enrolled in a registered course since 16 November 2015. The applicant did not respond to the NOICC. On 8 March 2017, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of her visa. The applicant seeks review of the delegate's decision.

4. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 27 April 2017 to give evidence and present arguments. The Tribunal heard evidence from Mr Huy Tan Dang, who was a classmate of the applicant’s when she studied a Diploma of Leadership and Management in the first half of 2017.

6. The applicant was represented by her registered migration agent, who attended the hearing.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant's visa should be affirmed.

   JURISDICTION

8. There was an issue for the Tribunal in that the application for review was not received within required timeframes. The applicant's representative, in an email dated 5 September 2017, submitted that the applicant never received the Notice of Cancellation. It is indicated that the address to which the notification was sent (a physical address) was not the applicant's address.

9. Based on ambiguity in government systems accessed by the Tribunal as to the last address known to the Department for the applicant, the Tribunal contacted the Department seeking clarification. In a response dated 21 November 2017 the Department indicated that, after the NOICC was issued, but prior to the Notice of Cancellation, the education provider did update the address details for the applicant on 17 February 2017 but no record of this was entered in Departmental systems.

10. Based on that information, the Tribunal is satisfied that the Notice of Cancellation was not sent to the last address known to the Minister for the applicant. Therefore, the applicant has not been notified of the primary decision and therefore the act which begins the time period in which the application must be lodged has not occurred. It is clear from judicial authority that, even if the time for applying for review has not commenced, a valid review application can still be lodged.[1]

    [1] SZOFE v MIAC (2010) 185 FCR 129; cf Hasan v MIAC (2010) 184 FCR 523.

11. Accordingly, the Tribunal has jurisdiction to consider the matter.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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?

13. 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).

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

15. The applicant provided a copy of the delegate's decision to the Tribunal which indicates that she has not been enrolled in a registered course of study between 16 November 2015 and 17 February 2017.  In the Tribunal hearing, the applicant acknowledged that she had ceased to be enrolled in a registered course between these dates.

16. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant's obligation under condition 8202(2) is to be enrolled in a registered course.

17. 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

18. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

19. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department's Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder's control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation; whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non refoulement obligations; and any other relevant matters.

20. The applicant and her migration agent indicated in the hearing that the compelling and compassionate reasons for the breach were her being pregnant and having a child, and the circumstances surrounding this. The applicant, in the hearing, indicated that she met a man with whom she became pregnant, but that he then left her. This created stress for the applicant. It also created a feeling of stigma: the applicant thought she would be judged while studying for being a single mother. Documents provided by the applicant indicated various financial expenses related to her child.

21. As documents indicate, the applicant’s child was born on the 16 April 2016. During the first half of the pregnancy, the applicant was enrolled in an English course which had commenced on 23 February 2015 and was due to be completed on 27 November 2015.

22. The Provider Registration International Student Management System (PRISMS) indicates that this enrolment was cancelled on 20 August 2015 based on unsatisfactory attendance. PRISMS further notes that the applicant notified the institution of ceasing her studies on 29 October 2015. The applicant confirmed in the hearing that this PRISMS information was correct.

23. The applicant indicated that she spoke with the English college about the difficulties she was facing due to her pregnancy. She indicated that she was told that she could have a temporary deferral for two months and would then be granted a more permanent deferral on maternity grounds. The applicant indicated that some of the communication occurred with the assistance of a friend. The applicant said, however, that the college were discriminatory against Vietnamese and did not take the action that they had promised, and that she eventually withdrew from the course. The applicant was not happy with her treatment by the college.

24. Initially in the hearing, the applicant indicated that she did not intend to study after this. Later in the hearing, the applicant modified this answer to indicate that she did have a future intention to study.

25. The Tribunal asked the applicant if she had any documentary evidence such as emails showing communication with the college. The applicant indicated that all discussion was oral only and there was no written communication.

26. The applicant was originally scheduled to commence a Bachelor of Business (International Hotel Management) after completing her English studies.  PRISMS indicates various enrolments in this course, all subsequently cancelled. From the applicant’s evidence in the hearing, from deciding to leave the English course in October 2015 she took no action with respect to studies or enrolments until early 2017.

27. When it was indicated to the applicant that, if observant of visa conditions, she would have taken action with respect to future enrolments to ensure compliance with both conditions 8202 and 8516 (effectively requiring her to be enrolled in a Higher Education Sector course), the applicant said that she assumed that the English college advised the Bachelor of Business institution of a deferral.

28. The Tribunal indicated to the applicant in the hearing that it had difficulty accepting that the applicant would have been confident of making an assumption that a deferral of the Bachelor course at one institution could be facilitated by another education provider. The Tribunal considers that the applicant was, or should reasonably have been, aware that she needed to make and ensure such arrangements for herself. The Tribunal finds it difficult to accept that the applicant would have relied on her English college when she was of the view that they had treated her badly and discriminated against her.

29. Considering all of the evidence, the Tribunal is of the view that the applicant effectively decided, at least for a period, to cease her studies in October 2015. The Tribunal is not satisfied that the applicant took steps or paid any significant regard to maintaining her visa obligations both to be enrolled in a registered course (condition 8202) and to be enrolled in a course appropriate to her visa class (condition 8516) until early 2017.

30. The applicant indicated that her motivation to resume her studies arose from the influence of her grandmother in Vietnam, who had been suffering colon cancer. Documentary evidence of her illness was provided by the applicant to the Tribunal. The applicant indicated that, under her influence, she decided that she needed to obtain a suitable qualification in Australia.

31. The applicant enrolled in a Diploma of Leadership and Management on 17 February 2017, documentary evidence of which was provided.

32. The applicant indicated that she never received the NOICC, which is dated 10 February 2017. The Tribunal notes that the NOICC was sent to a physical address and to two email addresses (prior to the issues arising leading to jurisdiction questions discussed above). It seemed apparent from questions by the Tribunal of the applicant in hearing that, in her view, enrolment soon after the issuing of the NOICC was merely a coincidence.

33. The applicant indicated that her agent, at this point in time, gave her incorrect advice that she only needed to enrol in a Diploma course which would, in turn, lead to her ability to be enrolled in a Bachelor course (rather than the need, in order to comply with condition 8516, to be presently enrolled in a Higher Education sector course).

34. At the conclusion of the hearing, the applicant’s migration agent submitted that the illness of the applicant’s grandmother affected the applicant in terms of the breaches. Despite a number of questions to the applicant about her grandmother’s illness, the applicant’s own evidence was the impact of her grandmother in influencing her that she should still continue to study. The applicant herself never stated that her grandmother’s illness upset her so much that she could not study.

35. Based on evidence of courses passed, and the evidence to the Tribunal of the applicant’s witness Mr Dang, the Tribunal accepts that the applicant was a dutiful student for the first half of 2017 until her education provider indicated that she could no longer continue to study the course as her visa had been cancelled. The applicant provided evidence of four units in this course being passed.

36. The applicant’s adviser gave evidence to the Tribunal, and provided documentary evidence, indicating that the bridging visa issued to the applicant after her student visa was cancelled contained a condition preventing her from studying.  Numerous contacts with the Department to remove this condition eventually resulted in her being allowed to study on the bridging visa in March 2018. The applicant thereafter was enrolled and commenced in continuation of the Diploma of Leadership and Management, which she is currently studying.

37. The applicant has provided to the Tribunal a Confirmation of Enrolment in a Bachelor of Business commencing in January 2019. This Confirmation of Enrolment was created on 16 April 2018.

38. The Tribunal accepts limitations on the applicant’s ability to study following the cancellation of the visa. The Tribunal draws no adverse inference from her failure to study or be enrolled from this point until study limitations on the bridging visa were removed. Thereafter, the applicant has undertaken appropriate steps to enrol in both a registered course and a Higher Education Sector course.

39. The essential issue for the Tribunal is whether there are compelling and compassionate circumstances for her failure to be enrolled in a registered course (condition 8202) between her non-commencement of the Bachelor of Business on 16 November 2015 and her enrolment in the Diploma of Leadership and Management on 17 February 2017. This is a not insignificant period of 15 months.

40. Also relevant to the Tribunal is whether they are compelling and compassionate circumstances for her failure to be enrolled in a Higher Education Sector course (effectively imposed by condition 8516) from 16 November 2015 until the visa was cancelled on 8 March 2017. This is a not insignificant period of almost 16 months.

41. The applicant has claimed that issues relating to her pregnancy, and the birth of her child in April 2016 and caring for him, are compelling and compassionate circumstances. The Tribunal can accept that the applicant was upset by the father of her child leaving her. The Tribunal acknowledges time, emotional and financial constraints due to raising a child alone as a single mother.

42. However, the evidence indicates to the Tribunal that the applicant decided to stop studying for a period in November 2015 without taking steps for a very considerable period to ensure compliance with visa obligations. This decision to stop studying was made a number of months before the applicant actually gave birth to the child, thus significantly before the effort and burden of caring for the child arose. Although the Tribunal acknowledges the burdens of pregnancy itself, the applicant provided no medical evidence of any particular difficulties faced during pregnancy.

43. As indicated to the applicant in the hearing, it would have been open to the applicant (with the assistance of an agent) to maintain or effect registration in an appropriate package of courses leading to a Bachelor degree and, if necessary, take steps to defer those courses based on issues as a consequence of the pregnancy and birth.

44. The Tribunal would make allowance for some period in which the applicant did not take such steps due to the significance and nature of the issues confronting her. However, as it is, the applicant’s breach of condition 8202 continued for 15 months (10 months after the birth of her child) and, in the case of breach of condition 8516, continued for 16 months (11 months after the birth of the child).

45. The Tribunal does accept that pregnancy and a decision to give birth to a child can occur in unexpected and difficult circumstances.  In one characterisation, pregnancy and birth might be considered compelling and exceptional notwithstanding that ultimately the birth is as a consequence of the actions and decisions of the mother. As indicated, the Tribunal would be willing to make some allowances in the applicant’s case due to the pregnancy and birth.

46. However, the circumstances of the pregnancy and birth do not excuse, in the Tribunal’s view, the applicant failing to take any meaningful steps in relation to her visa obligations as has occurred in this case. On the applicant’s own evidence she undertook no meaningful steps until February 2017. The Tribunal is prepared to accept that, at this point, the applicant thought that enrolling in the Diploma course would also meet the condition 8516 obligation, but this still means her allowing the breach of this condition and condition 8202 to continue for 15 months. The Tribunal notes that the period in which the applicant took no steps in relation to her visa conditions included approximately five months prior to her actually giving birth to the child.

47. The Tribunal does not accept as a compelling and compassionate circumstance that the applicant thought that there would be a stigma if studying due to having a child out of wedlock. The Tribunal does not consider this would be a significant cause of discrimination among students in the Australian context. In any event, the fact that the applicant is now studying is not consistent with this objection.

48. The breaches are in the context of the applicant being in Australia on a student visa, for the purpose of studying and having an obligation to be enrolled as appropriate. In the hearing, the applicant indicated that she came to Australia for the purpose of studying. The Tribunal does not consider that the applicant can have had a lack of awareness that a failure to be enrolled in an appropriate registered course put her in breach of visa conditions in relation to being enrolled and being enrolled in a course suitable to her visa, being a fundamental reason for being in Australia and the basis on which she was granted a visa.

49. On the evidence, the Tribunal is of the view that the applicant paid either no or scant regard to these visa obligations, notwithstanding the understandable difficulties of having to manage the birth of a child. In all the circumstances, the Tribunal considers the applicant should have taken greater steps than she did to seek to rectify her visa status between October 2015 and February 2017.

1. The Tribunal does not accept that the pregnancy of the applicant and birth and of her child can be considered as compelling and extenuating circumstances which justify the breach of both conditions 8202 and 8516 for this period of time.

2. At the end of the Tribunal hearing, the applicant’s migration agent submitted that the illness of the applicant’s grandmother affected the applicant in terms of her failure to enrol.. The Tribunal is not satisfied of this based on the applicant’s own evidence in the hearing which was only to the effect that her grandmother and her situation encouraged the applicant to resume her studies in early 2017. In any event, the Tribunal would not be satisfied that the illness of the grandmother would justify the breaches of both conditions 8202 and 8516 for 15 months, particularly in the absence of the applicant enrolling in appropriate courses and seeking a deferral on compassionate or compelling circumstances for this reason, if it mentally affected her so significantly.

3. In the applicant’s favour, the applicant has met the visa conditions that would have been imposed, if she still held a visa, after the visa was cancelled, taking into account restrictions on her bridging visa.

4. The Tribunal accepts that, soon after the applicant became entitled to study on her bridging visa, she took steps to comply with both conditions 8202 and 8516. The Tribunal takes into account that the applicant is currently studying and is on a pathway to a Degree course.

5. The applicant indicated that the hardship to her if the visa remains cancelled, and her compelling need to remain in Australia, is to enable her to obtain qualifications in Australia. She indicates that both she and her child will be looked down upon in Vietnam if they return to that country without her obtaining qualifications. The applicant indicated that, financially, she will struggle if she does not obtain qualifications in Australia. She indicated that her parents, who have paid for study in Australia, are not in a position to support her.

6. The applicant’s Australian-born child will be affected by the cancellation. From the applicant’s evidence in the hearing, the child’s father has abandoned them. The Birth Certificate of the child includes no details relating to the father. On that basis, the Tribunal does not consider that there is a hardship to the child, in travelling to Vietnam with the applicant, in being separated from his father. In the hearing, the applicant indicated that she will return eventually to Vietnam with her child. However, she indicated that her failure to obtain study qualifications will exacerbate discrimination that the child will face in Vietnam based on having a single mother.

7. The Tribunal accepts that if the applicant returns to Vietnam without obtaining qualifications after a number of years in Australia, her family and wider networks will consider that the applicant has not fulfilled her intention in being here and wasted resources allocated by her family. This may cause some shame for the applicant. The Tribunal accepts that without qualifications the applicant will not have the same employment prospects in Vietnam as otherwise. Nevertheless, as a healthy adult, the Tribunal is not satisfied that the applicant would be unable to obtain employment in Vietnam.

8. The Tribunal accepts that a hardship to the applicant if the visa remains cancelled will be her inability to apply for certain other visas onshore.

9. If the visa remains cancelled, the applicant will be an unlawful noncitizen and potentially liable to immigration detention. However, the applicant will be in a position to continue to be eligible to apply for a bridging visa while she makes arrangements to exit the country.

10. The Tribunal has no evidence that the applicant has behaved in any inappropriate way towards the Department.

11. The applicant herself indicated that she does not fear persecution or significant harm on return to Vietnam. She does not claim this for her child but does emphasise that the child will be looked down on having a single mother and this will be ameliorated if the applicant is able to obtain qualifications in Australia.

12. The Tribunal is not satisfied that societal attitudes in Vietnam towards the child will be overly influenced by the educational qualifications obtained by the applicant in Australia. The Tribunal is prepared to accept that there may be some degree of societal discrimination towards both the applicant and her child as a result of the child being born out of wedlock. The applicant has not claimed, and the Tribunal does not consider, that this level of discrimination would lead to a real chance of serious or significant harm to either the applicant or the child.

13. In summary, during her pregnancy, the applicant ended her studies, with an intention, at least for a period, not to study. Thereafter, the applicant took no steps to ensure compliance with visa conditions for a period of 15 months. Although the Tribunal acknowledges the stress suffered by the applicant because of the pregnancy and difficulties due to the effort of having to care for her child, the Tribunal is not persuaded that these constitute compelling and compassionate circumstances to justify the applicant taking no steps in relation to her visa obligations for a period of 15 months.

14. In the applicant’s favour, she would now be in compliance with student visa obligations if the visa is reinstated. The Tribunal has taken into account that the applicant studied in the first half of 2017, when she was able, and that she is currently studying and enrolled in a future Bachelor course. The Tribunal accepts some hardship to the applicant if she has to return to Vietnam without completing her studies in terms of employment prospects and the disappointment of her family and friends. The Tribunal would not be satisfied that any societal discrimination, not constituting either serious or significant harm, directed towards the applicant or her child is weighs significantly in favour of not to cancelling the visa given that the applicant and the child will return to Vietnam at some point and in the absence of that discrimination constituting serious or significant harm.

15. Balancing all factors, the Tribunal considers that it should exercise its discretion to cancel the visa.

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

    DECISION

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

    David McCulloch
    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.