Dinh (Migration)

[2022] AATA 2065

Dinh (Migration) [2022] AATA 2065 (23 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Hoa Thi Dinh

CASE NUMBER:  1920587

HOME AFFAIRS REFERENCE(S):          BCC2017/1896985

MEMBER:Meredith Jackson

DATE:23 June 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen Family Relationship (Temporary) (Class UP) (Subclass 461) visa.

Statement made on 23 June 2022 at 3:57pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – substantial compliance with conditions of previous substantive visa – did not maintain enrolment in registered course of study and student visa cancelled – parents stopped financial support for studies – claim of being misled by agents – relationship ceased – no substantive response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 116(1)(b), 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 461.225, Schedule 8, condition 8202

CASE
Kim v Witton (1995) 59 FCR 258

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 July 2019 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant Hoa Thi Dinh was born in 1995 and is a citizen of Vietnam. Ms Dinh arrived in Australia on 27 December 2013 as the holder of a student visa. She has not since departed. On 25 May 2017, Ms Dinh applied for the visa under review on the basis of her marriage to Mohammad-Abbas Ahmadi, who was born in 1994 and is a New Zealand citizen and holder of a Special Category (Class TY) (Subclass 444) visa.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy clause 461.225 of the Regulations. The delegate found the applicant had not complied with condition 8202 of her previous substantive visa, which was a Higher Education Sector Student (Temporary) (Class TU) (Subclass 573) visa. Condition 8202 requires that the visa holder maintains enrolment in a registered course of study. The delegate records that the applicant did not continue to study while she held the visa. The visa was subsequently cancelled. The applicant sought review of the decision to refuse to grant the Subclass 461 visa that is under review.

4. On 17 May 2022 the Tribunal wrote to the applicant via her nominated representative, her spouse Mohammad-Abbas Ahmadi, inviting her to provide information in support of her review by 31 May 2022. On 17 May 2022 Mr Ahmadi wrote to the Tribunal stating that he had been separated from his wife “since 12/2020”. “Hoa Thi Dinh my wife left me,” he stated. He provided the Tribunal with her last known email address. On 18 May 2022, the Tribunal wrote to Mr Ahmadi acknowledging his advice and enclosing a letter to the applicant seeking confirmation that he was no longer her authorised recipient. This letter, as well as a courtesy copy of the invitation to provide information letter, was sent to the email address provided by Mr Ahmadi for the applicant. On 23 May 2022 the Tribunal sent a hearing invitation to the applicant to both Mr Ahmadi’s email address and to that of the applicant. Ms Dinh accepted the invitation for a hearing set down for 9 June 2022 and in that form, cited the aforementioned email address. However, while the hearing response was received, no response to the request for information of 17 May 2022 was received prior to 31 May 2022 and on 2 June 2022 the applicant was notified that she had lost her entitlement to a hearing as a result. On 2 June 2022 the applicant responded that she had “responded to all of the email and filled out all the form [sic]”. The Tribunal responded on 2 June 2022 notifying her that on 26 May 2022 she had supplied a change of contact details form, which was not considered to be a response to the invitation to comment sent on 17 May 2022.

5. On 2 June 2022 the Tribunal again wrote to the applicant, this time under s.359A of the Act, stating that the Tribunal had received information on which she was invited to comment or respond by 16 June 2022. The letter stated the information was relevant to her case because it was information the Tribunal considered would, subject to her comments or response, be the reason, or a part of the reason, for affirming the decision under review. The information was that she was no longer in a relationship with her sponsor. On 2 June 2022 the applicant sought an extension of time to provide the information sought in the letter dated 17 May 2022. On 6 June 2022 she was advised that she had lost her entitlement to a hearing as she had not responded by the deadline of 31 May 2022 but could respond to the letter sent to her on 2 June 2022 by 16 June 2022. No further submissions have been received by the Tribunal.

6. The Tribunal has proceeded to make a decision on the information before it, including that on Tribunal and Department files.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   ISSUES AND LAW

8. The issue in the present case is whether the applicant complied substantially with the conditions that applied to her previous substantive visa.

9. Clause 461.225 of the Regulations requires that if the application is made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

10. In forming a view about whether the applicant has complied substantially with her visa conditions, the Tribunal is mindful of the authority in Kim v Witton (1995) 59 FCR 258 at 271 which reasoned that substantial compliance should take into account the nature of the breach of the condition; the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted; whether or not the applicant deliberately flouted the condition; and if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant. It is noted that the factors listed were not intended to be exhaustive and that in general it is a matter for decision makers to assess the weight to be accorded to them, having regard to the circumstances of the case. The Tribunal has considered appropriately the circumstances of the present matter in the above context.

11. Condition 8202 Schedule 8 of the Migration Regulations as it applied on 14 February 2014 - 21 March 2014 requires that 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 requirement that the holder is enrolled in a specified course.

    Condition 8202 Schedule 8 of the Regulations

    (1)The holder must be enrolled in a full-time course of study or training if the holder is:

    (a)a Defence Student; or

    (b)a Foreign Affairs student; or

    (c)a secondary exchange student.

    (2)A holder not covered by subclause (1):

    (a)   must be enrolled in a full-time registered course; and

    (b)   subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)   must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a) is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b) changes their enrolment to a course at the Australian Qualifications Framework level 9

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The Tribunal is required to assess whether the applicant complied substantially with the conditions of her previous visa, her Subclass 573 Student visa, during the validity period of that visa.

13. The Tribunal in forming a view has had regard to information on Tribunal and Department files, and the delegate’s decision.

    Applicant’s immigration and study history

14. The applicant’s previous substantive visa, a Subclass 573 Student visa issued for the Higher Education Sector, was subject to condition 8202, which requires a student to remain enrolled in a registered course while holding the visa. In refusing to grant the visa, the delegate found the applicant had not remained enrolled and therefore had breached the relevant condition.

15. The applicant provided the delegate’s decision to the Tribunal with the application for review. It records that on 23 May 2017, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of her Student visa under s.116 (1) (b) of the Act. The letter noted that she had not been enrolled in a registered course of study since 22 August 2016. On 29 May 2017, the applicant responded to the NOICC outlining her circumstances and stating that her parents were no longer supporting her studies financially.

16. According to the decision, the Department was not satisfied that the claimed cessation of parental funding of the applicant’s studies mitigated the apparent breach, on the basis the applicant had indicated when she applied for the visa that she had sufficient funds to meet the financial requirement in the Regulations. The applicant’s Student visa was cancelled on 14 June 2017.

17. In relation to the Subclass 461, the delegate’s decision found that the applicant did not appear to have complied with condition 8202 of her visa and did not appear to meet cl 461.225 of the Regulations.

18. The delegate proceeded to consider the applicant’s claim that she had twice received poor advice from migration agents. In relation to the claimed first instance, the Department noted that the applicant had not advanced, at the time of responding to the NOICC on 29 May 2017, evidence in support of her claim of poor advice from migration agent Pham Thi Duong. The delegate noted that there is no record of Pham Thi Duong having ever been a migration agent. The second claim that she received poor advice from another agent, Lidia Paul, regarding her Subclass 461 visa, was considered by the delegate to be irrelevant to whether Ms Dinh had substantially complied with condition 8202. A claim supported by medical evidence from Dr Vijay Reuben that Ms Dinh was suffering anxiety and depression related to her dealings with the department and threat of being deported was similarly not considered germane to the issue of whether the applicant had complied substantially with condition 8202 of her Student visa.

19. The delegate was not satisfied that the applicant substantially complied with the imposed conditions that applied to her previous substantive visa and did not satisfy cl 461.225 of the Regulations. The Subclass 461 visa was refused.

    Evidence before the Tribunal on review

20. Apart from the delegate’s decision that the applicant provided, the applicant submitted with her application for review, a copy of a statement dated 8 April 2019 about her circumstances. The Tribunal was provided with a copy of an accompanying statement from Mr Ahmadi and a medical certificate from Dr Vijay Ruben dated 6 April 2019 concerning the applicant’s mental health over her “deportation issues”. Ms Dinh also provided a letter dated 12 April 2019 from Anthony Byrne MP, the former Federal Member for Holt, seeking full consideration of her claims of having received poor legal advice and not deferring her studies.

21. In the course of the review, the Tribunal on 17 May 2022 received contemporary information from the applicant’s spouse, Mohammad-Abbas Ahmadi, which was that the relationship between him and the applicant had ceased. As recorded earlier, the Tribunal wrote to the applicant, in fairness, putting this information to her as adverse information relevant to her case. The Tribunal received no response. The Tribunal has considered the significance of the information but does not consider it to be relevant to whether the applicant complied substantially with condition 8202 of her Student visa. Consequently, the Tribunal affords it no weight in this decision, whether for or against the applicant.

22. The Tribunal is satisfied it provided significant and clear opportunities to Ms Dinh to provide information in support of her claims on review. Despite this, the applicant did not provide the Tribunal with new information or submissions. The Tribunal has had due regard to the statutory declaration sent to the Department of 8 April 2019 in which the applicant claimed that her parents ceased to support her studies financially, around the time she met her husband. The Tribunal notes the claim that she was misled by a person named Pham Thi Duong “from New Ocean” who gave her misleading advice to “stop studying and she would handle any correspondence”.

23. As the applicant did not avail herself of the opportunities afforded by the Tribunal to expand on her circumstances or otherwise explain her study record and the timing of her cessation of study, the Tribunal has little information before it to support a claim that she complied substantially with the conditions of her last substantive visa. Review of the cancellation decision was not sought, and by her own statements in 2019, the applicant was enrolled for a period, however stopped studying in 2016 around the time she met her husband. It is not in dispute that the final date of her enrolment was 22 August 2016.

24. In summary, the Tribunal is satisfied that the delegate’s decision correctly records the applicant’s enrolment lapse, and that the failure to maintain enrolment in a registered course beyond 22 August 2016 was the reason her Student visa was cancelled, as she remained onshore after that date without being enrolled. In the absence of convincing information to the contrary, the Tribunal is not satisfied that her failure to continue studying or enrol was beyond the applicant’s control; there were avenues open to her, such as seeking advice from her education provider, that do not appear to have been accessed by the applicant.

25. The significance of the applicant’s enrolment breach is clear enough: it is directly at odds with the purpose for which the visa was granted. Failure to abide by a condition that requires the maintenance of enrolment in a course ultimately costs a student the formal value of that course, therefore the basis on which the visa was granted is largely eroded. As referred to earlier, the applicant has not provided evidence to the Tribunal that she completed the course, nor took steps to mitigate her circumstances when she ceased studying by reporting to the Department or seeking the Department’s advice. She has not provided evidence that she sought relief from her provider to defer. She claims she took advice from an agent who misled her about the consequences yet provides no supporting evidence of having done so. These critical elements discount her compliance with her visa conditions by a significant degree, and it cannot be reasonably concluded that there was substantial compliance.

26. For completeness, the Tribunal notes the medical advice provided and the letter from the former MP Mr Byrne concerning the impact of the cancellation decision on Ms Dinh’s mental health are not weighted in favour of the applicant in this matter because the review is confined to the issue of compliance with visa conditions of the last substantive visa held and not with the impact of that decision on the applicant.

27. Having considered the circumstances of the applicant’s breach, which have not been actively contested before the Tribunal by significant new evidence or persuasive argument, the Tribunal is not satisfied the applicant substantially complied with condition 8202 of her last substantive visa. There is no evidence before the Tribunal that the applicant has not complied with the conditions of her Bridging visas.

28. The Tribunal finds the applicant does not satisfy cl. 461.225 of Schedule 2 of the Regulations.

    DECISION

29. The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen Family Relationship (Temporary) (Class UP) (Subclass 461) visa.

    Meredith Jackson
    Member