Doan (Migration)

[2019] AATA 3599

Doan (Migration) [2019] AATA 3599 (31 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ngoc Nhat Doan

CASE NUMBER:  1901370

HOME AFFAIRS REFERENCE(S):          BCC2018/4283872

MEMBER:Dominic Triaca

DATE:31 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 31 July 2019 at 4:47pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –not enrolled in a registered course of study – breached condition 8202 – temporary financial crisis – didn’t take any steps to engage in further study –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 January 2019 made by a delegate of the Minister for Home Affairs 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’s student visa was granted on 31 May 2016 with an original expiry date of 15 March 2021. 

3. The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study from 24 November 2017. 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. The applicant appeared before the Tribunal on 31 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages, although the applicant’s English was sufficiently good that the majority of the hearing was conducted in English.

5. 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

6. The applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (the Regulations). The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of 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?

7. 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).

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

9. In the delegate’s decision record, the delegate identified the period from 24 November 2017 to 17 January 2019 as the relevant period in which the applicant was not enrolled in a registered course. This amounted to approximately 13 months during which the applicant was in continuous breach of the visa.

10. The Department of Home Affairs wrote to the applicant on 21 December 2018, notifying him of its intention to consider cancelling his student visa (the NOICC). That notice set out particulars of the alleged breach by the applicant of condition 8202. The applicant was invited to comment on these allegations before the Department moved to cancel his visa.

11. The applicant responded to the Department in writing on 4 January 2019 (the NOICC response). In that response, the implicitly conceded that he was in breach of his visa as had been alleged by the Delegate.

12. In his oral evidence before the Tribunal, the applicant confirmed that the delegate’s finding was true and correct that he had not been enrolled in any registered courses and not studying since 24 November 2017 and he admitted that he had been in breach of his student visa as alleged.

13. 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

14. 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.’

15. The applicant is 25 years old and first arrived in Australia in June 2016. He first studied English upon arrival. He provided the Tribunal with a copy of his Academic Transcript and Certificate from Monash College confirming his successful completion of Monash English Bridging for Part 2 Diplomas on 23 September 2016.

16. He enrolled in a Diploma of Engineering at Monash College. His plan was to complete the Diploma of Engineering and then undertake a Bachelor of Engineering (Honours) at Monash University commencing 2018 and concluding on 31 December 2020.

17. The applicant states he commenced studying the Diploma of Engineering. He says he completed most of the units, but there was one unit he did not complete. He did not complete the Diploma course. He did not provide the Tribunal with any documents in relation to his study of the Diploma from Monash such as an academic transcript.

18. He says he ceased studying in October 2017 and that his enrolment at Monash College was cancelled on 2 November 2017 due to his notification to the College that he was ceasing his studies. It followed that his Confirmation of Enrolment in the Bachelor course was cancelled on 24 November 2017.

    The applicant’s evidence.

19. In his evidence to the Tribunal he set out the personal circumstances that led to the cancellation of his CoE as follows:

20. He undertook the first year of study in Australia without any issues.

21. He was sent by his parents to live with his Uncle in Australia.

22. The first year’s tuition had been paid by his family prior to arriving in Australia. However, in around November 2017 his mother transferred the sum of $100,000 to his Uncle in Australia for the purpose of paying his second year’s tuition. He says his Uncle gambled this money at Crown Casino and he did not pay the fees.

23. He says his Mother and Uncle were in a property business together in Vietnam and this was the source of the funds paid to his Uncle.

24. This led him to advise Monash that he would not be continuing. Monash advised him to attempt to complete the Diploma course. He says he attempted but could not complete one subject.

25. As a result of the dispute with his Uncle, he was forced to move out of his Uncle’s home.

26. His Mother told him that she had lost $50,000 on the “black market” and was unable to pay further money towards his tuition fees.

27. His family has now recovered financially and are in a position to assist him financially in the future.

28. He provided a medical certificate confirming that he was suffering from “family stress” between 14 -18 August 2017.

29. He did not obtain a deferral of his studies. He says he tried to but there are no documents provided in relation to any attempts to defer.

30. Since November 2017 he has “stayed in the house” for an extended period of time. He could not study. He has worked at a factory in Sunshine for 20 hours per week. He states he earns $300.

31. He would suffer hardship were he to return to Vietnam without any qualifications and he would suffer emotionally from the disappointment.

32. He says his mother suffered a heart attack and a stroke around November 2017. He was depressed and stressed as a result of his mother’s hospitalisation. He says he decided to “stop studying” in order to “balance himself”.

33. The Tribunal has also read and had regard to the applicant’s email to the Department in response to the NOICC dated 4 January 2017 and notes that the applicant reiterated and elaborated on the matters set out in that email in his evidence before the Tribunal.

34. The Tribunal accepts that the applicant arrived in Australia with the purpose of studying. This is evidenced by his enrolment at Monash and his early progress. The Tribunal accepts that the applicant’s current position is that he would like to remain in Australia and return to study.

35. However, the evidence before the Tribunal demonstrates that the applicant’s purpose changed from study during the time he has spent in Australia and it is apparent that he remained in here on a student visa for a significant period of time without studying or being enrolled in a registered course. This weighs heavily against granting the application.

36. The Tribunal accepts the applicant’s evidence that the family support that he anticipated did not eventuate and he was placed in the middle of a difficult family situation. However, the Tribunal considers that many students are forced to contend with difficulties during their stay in Australia including emotional and financial pressure being away from their family support networks. They are also required to comply with the conditions of the student visa.

37. It is apparent that the applicant found himself in breach of his student visa conditions in November 2017. If a student holding a student visa finds that they are unable to maintain satisfactory course progress or enrolment for personal reasons, the student has a very definite choice. They may advise the Department and return to their home country until such time as they are able to study. Alternatively, they may remain in Australia on a valid student visa, which the Tribunal considers is a decision to recommit to achieving satisfactory course progress and enrolment. In this case, the applicant has remained in Australia for 13 months on a student visa, without studying or being enrolled to do so. The applicant failed to take any positive steps to remedy this situation with respect to his continuing obligations throughout this time.

38. Further, the Tribunal considers that if the applicant found himself in a temporary financial crisis, he could have deferred his studies, sought leave from Monash, informed the Department about his personal situation or enrolled in an alternative course of study with lower fees. Whilst the applicant states he attempted to defer his studies, he provided no supporting evidence in this regard and the Tribunal gives this assertion little weight. There is no evidence that the applicant took any other measures to address his breach.

39. There is certainly no evidence at all to suggest that he took any steps to engage in further study after his CoE was cancelled in November 2017 save that he says he attempted to obtain a release from Monash in December 2018. This is over 12 months after the cancellation his CoE.

40. The applicant’s failure to take any meaningful action to address the breach is consistent with his evidence that he “stayed in the house” and “decided to stop studying (to) balance himself.” The Tribunal considers this evidence reflects the applicant made a personal choice to cease studying around November 2017.

41. The Tribunal also notes that, while the applicant failed to take positive action in relation to remedy the situation with respect of his continuing study obligations, he found the time to do other things while he remained in Australia. In particular, he stated in evidence that he continued to work and so, it would seem, he continued to reap the benefits of relatively high wages available to him in Australia. He chose not to study and, in doing so, he was not acting in a manner that was consistent with the fundamental purpose of the visa.

42. The Tribunal notes the applicant’s statement that he became depressed due to his Mother’s illness. The Tribunal has regard to the Medical Certificate of Dr Bui dated 16 August 2017 that confirms the applicant was suffering from family stress. The Tribunal considers this evidence falls well short of evidence the applicant was suffering from a diagnosable mental health condition during the period in which he was in breach of the student visa. Accordingly, his failure to comply with the visa conditions cannot be explained on the basis of a chronic mental health condition.

43. The Tribunal has given consideration to the applicant’s expressed desire to remain in Australia and complete his education. However, there is no evidence that he has completed a course since 2016. The Tribunal accepts that it would be difficult for him were he not allowed to complete his education in Australia. He gave evidence that this would be a hardship to him, together with the embarrassment of returning home without the qualification he sought. There is also some wasted time and money he has paid in relation to his previous studies that would be lost. The Tribunal takes this into account. However, that desire and hardship must be tempered by the extent of his non-compliance with the conditions of the visa and his failure to take steps to resolve his breach. It was a student visa which obliged him to prioritise studying in Australia for the entire time he was here. The Tribunal considers that he has not provided a satisfactory explanation for not complying with that fundamental condition for a period of 13 months.

44. The Tribunal has given consideration to the applicant’s past and present behaviour toward the Department. There is no adverse evidence before the Tribunal in this regard. There also do not appear to be any consequential cancellations under s 140 of the Act that will follow if the visa is cancelled.

45. The Tribunal notes that if the visa is cancelled, the applicant will become an unlawful non-citizen and be liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his potions to apply for further visas from within Australia. He will also be subject to a 3 year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4103 to be met. However, these are all the intended consequences of the legislation and reflect the seriousness of the breach. In any event, the applicant’s evidence was that if the visa was cancelled, he would return to his home country so there is no evidence that he will become unlawful or be subject to detention.

46. The Tribunal notes that the Australia’s international obligations do not appear to be engaged by the circumstances of this case.

47. In all the circumstances, the Tribunal is satisfied that the applicant’s visa ought to be cancelled.

    DECISION

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

    D.Triaca
    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.