Doan (Migration)

Doan (Migration) [2020] AATA 3394 (26 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Thi Ha Ly Doan
Ms Kim Le
CASE NUMBER:  1908552
HOME AFFAIRS REFERENCE(S):          BCC2019/111804
MEMBER:Michael Biviano
DATE:26 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 26 June 2020 at 1:29pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – gap in studies – applicant changed to vocational courses – newborn child – limited academic progress – college cancelled enrolment – circumstances beyond the visa holder’s control – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 28 March 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that she was not enrolled in a registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicants appeared before the Tribunal on 22 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review by their registered migration agent. On the business day prior to the hearing, their migration agent ceased acting. At the hearing, the applicant was self-represented.
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
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?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·must be enrolled in a full-time registered course: 8202(2)(a)
·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: 8202(2)(b);
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).
In the present case, the applicant’s visa was cancelled on the basis the applicant was in breach of subclause (2)(a) of condition 8202 of her visa in that she was not enrolled in a full- time registered course of study for the period from 9 May 2018 to the cancellation of the enrolment on 28 March 2019.
The decision record of the delegate of the Department of Home Affairs (the Department) on 28 March 2019, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 12 August 2016 and the reasons for the cancellation of the visa (Decision Record).
The applicant came to Australia on 2 September 2012 pursuant to a student (Subclass TU 573) visa to undertake a suite of accounting courses including a Diploma of Accounting at Taylors College and a Bachelor of Accounting at Cambridge College (accounting courses).
The applicant gave evidence that she did not enjoy the accounting courses and struggled with her studies. She claimed that she studied the Diploma of Accounting for half a term. She then transferred to study the Bachelor of Accounting at Cambridge College for 1 to 2 terms.
She then decided to change course and undertook a Bachelor of Business Management, when she failed some subjects.
On 12 August 2016, she successfully obtained a new TU-573 visa to study that course but she claimed that she foreshadowed in her application that she would be changing her course of study to cooking based courses.
She claimed that in April 2017 she ceased her studies in the Bachelor of Business Management course.
She gave evidence that she then enrolled in:
a.Certificate III in Commercial Cookery;
b.Certificate IV in Commercial Cookery;
c.Diploma of Hospitality Management; and
d.Bachelor of Tourism and Hospitality;
(hospitality courses)
at Academies Australasia Polytechnic (AAPoly). The commencement date for her hospitality courses was in September 2017.
In May 2017, the applicant gave birth to her child. The child was born prematurely.
The applicant cared for her young child prior to commencing studies in the Certificate III in Commercial Cookery. She claims that her husband obtained a short visa to come back to Australia for one month and her mother had applied for a visa to come out to Australia to look after the child so that the applicant could study.
That application for her mother’s visa was refused.
The applicant in November 2017, successfully applied for and was able to defer her studies at AAPoly for a period of around 6 months. In or about April 2018, the applicant claims that she applied for a further deferment of her enrolment in the hospitality courses on the basis that her child was not talking and behind in development.
AAPoly refused her further request for deferment. The applicant decided not to return to study but to stay at home and look after her child. She had considered child care and trialled it but it was too expensive and her family were having financial difficulties. She considered having her child return home to Vietnam and stay with her mother, but as she was born prematurely and had difficulties in Australia, she believed that her child ought to remain in Australia with the best medical care available. She decided to remain in Australia and not study.
The applicant did not tender any corroborating documentary evidence supporting her evidence on matters relating to her enrolment in courses, courses studied and having a child.
On 8 May 2018, AAPoly cancelled her enrolment in the hospitality courses. She confirmed that AAPoly wrote to her and advised her of the cancellation.
The applicant claimed that AAPoly should have informed her that if her course was cancelled that her visa may be cancelled. However, this was not the role of AAPoly and the applicant gave evidence that she was aware that as a student with a study visa if she was not enrolled in a course of study, her visa could be cancelled. The applicant gave evidence that she did not enrol in a course of study after her hospitality courses at AAPoly were cancelled.
On 27 February 2019, the Department provided the applicant with a Notice of Intention to Consider Cancellation (NOICC) of her visa. The Decision Record confirms that she did not file a response to the NOICC within the time requested.
The applicant conceded in evidence that she was not enrolled in a registered course of study from 9 May 2018 until the cancellation of the visa on 28 March 2019, being a period of 10 months and 19 days, which is a long period of time. By reason of not being enrolled in a registered course for that period of time, she did not meet condition 8202(2)(a) of her visa.
Accordingly, the applicant has not complied with condition 8202(2) of her visa. As this was a condition that was attached to her visa, the applicant therefore breached a condition of her visa and the visa is liable to cancellation under s.116(1)(b) of the Act.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).
Consideration of the discretion to cancel the visa
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 Procedural Instruction ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant gave evidence that she came to Australia to study and undertake an English course and the accounting courses. She came to Australia with the intention of studying.
She did not complete the accounting courses and did not enjoy her studies. She transferred to a Bachelor of Business Management. She did not complete that course and she transferred to the hospitality courses at AAPoly.
She commenced the Certificate III in Commercial Cookery in September 2017 and her studies were deferred in November 2017 to look after her young child. She did not return to study in in April 2018 because she had no one to look after her child in Australia and she did not have the funds to send the child to child care.
Her enrolment ceased on 8 May 2018 and she did not re-enrol at another college and seek to defer those studies. She was not enrolled for a period of 10 months and 19 days, which is a long period of time not to be studying. Further the applicant, apart from a certificate in English Foundations, has not completed any course of study she has undertaken. Her conduct has been consistent with an intention of not genuinely wanting to study during this period of time.
Whilst the Tribunal accepts that the applicant may have had difficulties in making arrangements to have someone look after her child, the applicant was obliged to meet her visa conditions and it was her responsibility to maintain enrolment in a registered course of study. The applicant was at liberty to enrol in another course with another provider and defer her studies further.
The Tribunal understands the applicant’s reasons as discussed above for not being compliant with the visa, where the applicant was aware that she would be in breach of her visa by not enrolling in a registered course of study.
The applicant claims that in breach of Bridging Visa class E, she returned home to Vietnam on 26 September 2019, with her daughter, rather than stay in Australia which is also consistent with not wanting to study in Australia. She has continued to remain in Vietnam.
Despite the reasons claimed for not being enrolled, the Tribunal finds that the applicant was responsible for the period of her non-enrolment and her conduct confirms an intention that she did not wish to study during the period for which she was not enrolled.
The applicant has given evidence that in the future she wants the opportunity to complete the hospitality courses at AAPoly or enrol at William Angliss Institute to undertake those courses. She gave evidence that if she completes the hospitality courses, which would take three and half years to complete, she would return home and obtain employment in Vietnam.
If the cancellation of the visa is set aside and the applicant completes those courses then her stay will not conclude until the end of 2023, which would result in her stay in Australia being more than 10 years.
While the Tribunal accepts that the applicant came to Australia to study and she intends studying in the future, having regard to the long period of the breach, the reason for not being enrolled and the fact that the applicant could have applied for a new course and deferred those studies, and that the applicant was responsible for not being enrolled in the hospitality courses, the Tribunal gives these matters some weight towards the visa being cancelled.
The extent of compliance with visa conditions
The applicant accepted in evidence that she was not enrolled in a course of study from 9 May 2018 until the cancellation of the visa on 28 March 2019, a period of more than 10 months, which is a long period of time. Therefore, the applicant has not complied with condition 8202(2) for a long period of time. The non-compliance with condition 8202(2)(a) for such a long period of time may weigh towards cancelling the visa unless the Tribunal accepts her reasons for non-enrolment or that the reasons for the non-enrolment were beyond her control.
The applicant in evidence gave several reasons why she lost her enrolment and she was not enrolled for 10 months as set out above, which are not persuasive. The applicant claims that she was not enrolled as she was alone in Australia and had to look after her child who was around one year old at the time and had some difficulties. No medical evidence was given in support of those claims. The Tribunal finds as discussed above that the reasons for not being enrolled in a full-time registered course were the responsibility of the applicant.
Further the applicant had the option of applying to be enrolled in a new course of study at another institution and delaying the start of the course for a further number of months until her child was a little older so that she could make alternative arrangements for her.
The Tribunal finds that apart from the matters before this Tribunal, there are no other matters raised about the applicant not being compliant with her visa.
Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a full-time registered course of study and that they are responsible for ensuring they are enrolled in a registered course of study.
The Tribunal finds that the reasons for not being enrolled in a full-time registered course of study were the responsibility of the applicant.
Other than the breach of condition 8202(2) the Decision Record of the delegate does not reveal any other breach of her visa conditions.
The applicant created the breach of her visa in losing her enrolment in the hospitality courses, and not seeking to reenrol.
While the Tribunal understands the applicant’s reasons for losing her enrolment and not being enrolled in a full-time registered course, they do not excuse the applicant from not being compliant with the visa, where the applicant was aware that she would be in breach of her visa by not being enrolled in a full-time registered course.
Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a full-time registered course of study and they are responsible for ensuring they are enrolled in a registered course of study.
The Tribunal does not accept her reasons for non-enrolment or that the reasons for the non-enrolment were beyond her control.
Having regard to the very long period of the breach, the reasons for losing the enrolment in the hospitality courses, and that the applicant was responsible for not being enrolled in a full-time registered course, the Tribunal gives these matters substantial weight towards the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant if she or other members of her family would suffer hardship if the visa was cancelled.
The applicant gave evidence that if her visa was cancelled it would cause her a substantial degree of hardship as it would impact on her opportunities in the future to complete an education in undertaking the hospitality courses and getting a job in Vietnam.
The applicant gave evidence that she has been unable to get a job and if she cannot study, she will be a burden on her family. When asked whether she would be a greater burden on her family if she had to come to Australia and study at great expense, the applicant gave evidence that was not the case as her parents-in-law were prepared to fund her tuition costs in Australia.
The applicant gave evidence that she could study cooking courses in Vietnam but they are not as practical as those in Australia and she preferred to study in Australia. She claimed that her husband wants her to complete her studies.
The Tribunal notes that the applicant has, apart from obtaining a Certificate in Foundation English, not completed any qualifications despite living in Australia for 7 years. She had only commenced the Certificate III in Commercial Cookery, before losing the enrolment in that course. The applicant will not lose any tuition fees on a part-completed course as a consequence of the cancellation as she will need to commence a new course.
However, the Tribunal finds that while these matters may be the consequences of the visa cancellation, they are not matters that would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.
The Tribunal considers that the above matters give marginal weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.
The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.
Ultimately, the responsibility regarding enrolment rests with the student.
The applicant knew or ought to have known that by not being enrolled in a registered course of study at the appropriate level she would be in breach of condition 8202 and that her visa may be cancelled.
The primary responsibility of the applicant under the visa is to be enrolled and undertake a registered course on a full-time basis. The applicant was not enrolled in a full-time registered course for a period of more than 10 months, which is a long period of time to be in breach of the visa.
The Tribunal has considered the applicant’s explanations for why she was not enrolled in a full-time registered course for a long period of time and therefore in breach of condition 8202(2)(a). The Tribunal does not accept those circumstances were beyond her control, or circumstances that provided a reasonable explanation for not being enrolled for such a long period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.
Past and present behaviour of the visa holder towards the Department
According to the Decision Record, the applicant responded to the NOICC. Further, there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.
Whether there would be consequential cancellations under s.140
This matter is not relevant in this application as the Tribunal is not aware of any other person in Australia whose visa would be cancelled under s.140. The applicant and her child have returned to Vietnam. The Tribunal gives this factor no weight towards the visa not being cancelled.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

If the Tribunal decides to affirm the decision to cancel the visa on these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so she would need to depart Australia and apply from overseas for most types of other visas.
Further, if the Tribunal decides to affirm the decision to cancel the Student (Temporary) (Class TU) visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet public interest criterion 4013, so if the applicant decides to apply for a new visa from overseas if she has to depart Australia, then that application may not be approved within the next three years.
However, these are the intended consequences of the legislation when a visa is cancelled on these grounds.
The applicant gave evidence that if the visa remained cancelled she would be unable to complete her studies in Australia. The applicant has returned to her home country of Vietnam and therefore there is no indication that she would become unlawful or be subject to detention.
Accordingly, the Tribunal gives this factor marginal weight towards the visa not being cancelled.
Whether 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
This matter does not appear relevant in this application and the Tribunal gives this factor no weight towards the visa being cancelled.
If it’s a permanent visa, whether the visa holder has strong family, business or other ties in Australia
This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa being cancelled.
Any other relevant matters
The Tribunal is not aware of any other relevant factors in relation to the decision as to whether the visa ought to be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.
Michael Biviano
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(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.

[2020] AATA 3394

26 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction