Do (Migration)

[2019] AATA 4907

Do (Migration) [2019] AATA 4907 (3 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Bich Ngoan Do

CASE NUMBER:  1726735

HOME AFFAIRS REFERENCE(S):           BCC2017/2924623

MEMBER:David Thompson

DATE:3 November 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 November 2019 at 10:37pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – non-appearance before the Tribunal – ground for cancellation – enrolment – not enrolled in a registered course  – consideration of discretion – purpose of stay in Australia – significant breach – circumstances giving rise to non-compliance – father’s health condition – reasonable steps to maintain enrolment – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 360, 360A, 362B, 379A
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 October 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 delegate cancelled the visa on the basis that the applicant had breached condition 8202(2)(a) on her visa, in that she was not enrolled in a registered course of study between 14 February 2017 and 28 September 2017, and that in the circumstances of the case the grounds for cancelling the applicant’s visa outweighed the grounds for refraining from doing so. 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. On 6 September 2019, the applicant was invited to attend a hearing on 25 September 2019, pursuant to s.360 of the Act. As required by s.360A of the Act, that invitation was sent to the applicant by email in the manner stipulated in s.379A(5) of the Act, and contained a statement of the effect of s.362B if the applicant were to fail to attend the scheduled hearing.  The applicant did not attend the hearing scheduled for 25 September 2019, and did not seek an adjournment of that hearing. The Tribunal attempted to contact the applicant subsequently, but received no response from her. In these circumstances, the Tribunal has decided to proceed to a determination of this review application on the papers, pursuant to s.362B of the Act.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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.

   Did the applicant comply with Condition 8202?

6. 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 between 14 February 2017 and 28 September 2017.

7. Because the applicant did not attend the hearing scheduled in this matter, and did not provide the Tribunal with any documentary evidence prior to hearing, the only evidence before the Tribunal going to the issue of whether the applicant had in fact breached condition 8202 is that found on the Department’s file. An examination of that file shows that the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) on 25 September 2017. That NOICC clearly stated that the Department had formed the view that the applicant had not been enrolled in a registered course of study since 14 February 2017. The applicant responded to the NOICC by email on 12 October 2017. In that response, she admitted that she had failed to enrol in February 2017 and provided evidence in the form of Confirmations of Enrolment that she had enrolled in courses of study on 29 September 2019. On the basis of that evidence, the Tribunal finds that the applicant was in breach of condition 8202 on her visa from 14 February to 28 September 2017 (inclusive).

8. 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

9. 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’.

10. As was noted above, the evidence available to the Tribunal relevant to the determination of this review application is limited, consisting of documentary evidence provided to the Department in response to its NOICC. That documentary evidence is:

    a.a written statement made by the applicant;

    b.a written statement made by the applicant’s father, Mr Van Dang Do;

    c.an International Student Offer and Acceptance Agreement issued by Academies Australasia Polytechnic to the applicant and dated 3 October 2017, offering enrolment in a Bachelor of Tourism and Hospitality Management programme to commence on 18 November 2019 and ending on 8 July 2022;

    d.a copy of Confirmation of Enrolment (CoE) 926E1A93, created 29 September 2017 in respect of the applicant’s enrolment in a Diploma of Project Management programme offered by Onyx Developments Pty Ltd trading as Australasia International School, to commence on 2 October 2017 and to end on 30 September 2018;

    e.a copy of CoE 926E1C55, created 29 September 2017 in respect of the applicant’s enrolment in an Advanced Diploma of Leadership and Management programme offered by Onyx Developments Pty Ltd trading as Australasia International School, to commence on 1 October 2018 and to end on 29 September 2019; and

    f.a patient discharge form in respect of Mr Van Dang Do, showing admission to hospital in Vietnam on 15 November 2016 for treatment for tuberculosis and discharge from hospital on 15 August 2017.

    The applicant’s purpose in coming to and staying in Australia

11. The applicant’s written statement to the Department asserts that she came to Australia in order to study an English course in preparation for further studies, and to study for a Bachelor’s degree. There is no evidence before the Tribunal to the contrary, and the Tribunal accepts this statement. The Tribunal also accepts that this was the applicant’s purpose in staying in Australia, at least until November 2016, when she learned that her father had become seriously ill. The applicant’s statement indicates that from that date she wanted to return to Vietnam to be with her father, but her mother would not permit her to do so, being of the view that she should concentrate on her studies. The applicant stated that as a dutiful daughter she accepted this, although it ran contrary to her own wishes. The Tribunal accepts that this is the reason why the applicant stayed in Australia. Her purpose in staying in this country had not changed, at least until February 2017.

12. On the account of circumstances contained in the applicant’s written statement to the Department, she ceased attending her college at some time in February 2017 because she was so worried about her father’s health that she could not concentrate on her studies and dared not be seen at her college in that emotional state. However, her mother’s prohibition on her returning to Vietnam remained in effect. The Tribunal finds that at this point, the purpose with which the applicant had come to Australia had been effectively placed in abeyance, although not necessarily abandoned, and that for the time being at least she had no positive purpose in remaining in Australia.

13. The applicant’s father had recovered sufficiently to be discharged from hospital in August 2017. The applicant’s statement to the Department indicates that up to this point, and for some unspecified time beyond it, the applicant had not informed her parents that she had ceased studying, as she was afraid of her parents’ reaction. The Tribunal finds that at this point the applicant’s main purpose in staying in Australia was to avoid admitting the truth to her parents. However, as the only way the applicant had of rectifying her situation was to recommence her studies, this purpose was consistent with the purpose of studying in Australia, even if at the time studying was not her dominant purpose.

14. It seems from the evidence before the Tribunal that the applicant revealed the truth of her situation to her parents around the time the Department sent her its NOICC (that is, 25 September 2017). The evidence available to the Tribunal is not sufficiently detailed as to allow any positive finding to be made as to the sequence of these events.  According to the applicant’s statement (and indeed, according to her father’s statement) the event that led to her telling her parents the truth of her situation was their suggestion that she should come back to Vietnam to visit them at Christmas 2017, and that she should bring her diploma certificate with her as her father was (in his own words) “really looking forward to seeing her diploma certificate as a gift.” At this point, in the face of her parent’s disappointment, the applicant would seem to have formed the intention to take up her studies again, although it is unclear on the evidence whether she did anything to give effect to that intention until after the NOICC arrived.

15. For these reasons, the Tribunal finds that the applicant’s underlying purpose in staying in Australia was to study, although her circumstances were such that this purpose was not always uppermost in her mind from February 2017 to September 2017. In reaching this finding the Tribunal places some weight on the fact that there is no suggestion on the evidence that the applicant had any other positive and inconsistent purpose in staying in Australia. However, there is no evidence before the Tribunal suggesting that, beyond completing her studies, the applicant has any compelling need to travel to or remain in Australia.

16. The Tribunal gives some weight to this factor in the applicant’s favour.

    The extent of the applicant’s compliance with her visa conditions

17. The applicant was in breach of her visa conditions for approximately 7 ½ months. This is a significant breach. Further, there is no indication in the evidence before the Tribunal that the applicant took any early steps to address her breach, such as applying to defer her enrolment on compassionate grounds. The applicant’s breach ended on 29 September 2017, when she obtained the CoEs mentioned in paragraphs 10(d) and (e) above. The delegate appears to have taken the view that the applicant had obtained these CoE’s after receiving the Department’s NOICC, and because of that NOICC. It is clear that the first part of that proposition is correct, but the evidence before the Tribunal is not sufficient to establish that the applicant had done nothing about re-enrolling before receiving the NOICC, and the Tribunal is not prepared to make that finding. Even so, the Tribunal gives considerable weight to the significant extent of the applicant’s breach as a factor in favour of cancelling her visa.

    The circumstances in which the ground of cancellation arose

18. The written statements provided by the applicant and her father to the Department were largely concerned with the circumstances in which the applicant ceased studying, the ground upon which the Department cancelled her visa. Those circumstances, as related in the statements, have already been summarised in paragraphs 11 to 15 above, in the course of considering the purposes of the applicant’s stay in Australia.

19. The circumstances in which the applicant’s breach arose could not be said to be of her own making, nor entirely within her control. There is no evidence before the Tribunal suggesting that she ceased studying because she wished to do something else, or because she was excluded from her course for unsatisfactory progress, for instance. However, she could have taken steps to address or perhaps avoid the breach (seeking a deferment for compassionate reasons, for instance, a possibility already mentioned in these reasons), but did not. The tenor of her statement is that her emotional state, of extreme worry for her father compounded by her mother’s insistence that she remain in Australia rather than returning to Vietnam to see him, was such that she was not in a position to contemplate or execute such measures. To that should be added another factor mentioned in the applicant’s statement, her shame and sense of guilt at having ceased studying and her fear of disappointing her parents. The Tribunal accepts the applicant’s account of these circumstances as an explanation of her conduct, but nonetheless has reservations as to whether that explanation is entirely adequate. It may be that the applicant could have overcome those reservations by giving further evidence, but the applicant has missed her opportunity for a hearing (for reasons that have not been explained) and the Tribunal has not had the benefit of hearing and exploring such evidence as she might have given at hearing.

20. The Tribunal therefore gives considerable weight to the applicant’s explanation of the circumstances giving rise to her breach as a factor in favour of her application, without finding that it excuses the applicant’s breach entirely.

    Degree of hardship that may be caused

21. The applicant’s written statement refers to the shame that cancellation of her visa will cause her parents to feel, in the face of her family and of her community generally. Mr Van Dang Do’s written statement refers to the same matter, but in a little more detail. The applicant’s statement also refers to the money that has been spent on her education in Australia that will be wasted if she has to return home without her qualifications. There is no other evidence before the Tribunal indicating any other hardship that cancellation of her visa will cause the applicant.

22. The Tribunal accepts that the matters the applicant and her father have identified are hardships, but has insufficient evidence to make any assessment of their real extent or of their real significance for the applicant and her family. The Tribunal therefore gives this factor only a little weight in favour of the applicant.

    Mandatory legal consequences of cancellation

23. If the applicant’s visa is cancelled, she might in due course become an unlawful non-citizen and become liable to be detained pursuant to s.189 of the Act, and removed from Australia under s.198 of the Act if she does not leave the country voluntarily. Her options for applying for further visas whilst in Australia would be limited pursuant to s.48 of the Act, and Public Interest Criterion 4013 might prevent her from being granted certain temporary visas, including a further student visa, for a specific period. However, these are intended consequences of a breach of visa condition under the Act, and the Tribunal gives this factor only slight weight in the applicant’s favour.

    Consequential cancellations

24. There is no evidence before the Tribunal suggesting that cancellation of the applicant’s visa will result in cancellation of any other person’s visa pursuant to s.140 of the Act. The Tribunal gives this factor no weight at all, either in favour of the applicant or against her.

    Past and present behaviour of the visa holder towards the Department

25. There is no evidence before the Tribunal suggesting that the applicant has behaved in any untoward manner towards the Department, or has been anything but cooperative in her dealings with it. This, up to the date of cancellation, is confirmed in the delegate’s decision record. The Tribunal gives this factor some weight in the applicant’s favour.

26. There is no evidence before the Tribunal suggesting that cancellation of the applicant’s visa would result in any breach of Australia’s international obligations. The Tribunal gives this factor no weight at all, either in favour of the applicant or against her.

    Other relevant matters

27. There is no other relevant matter to be considered on the evidence before the Tribunal.

    Conclusion

28. Considering the circumstances as a whole, the Tribunal concludes that on balance, the applicant’s visa should not be cancelled.

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    David Thompson
    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.