Dong (Migration)

[2017] AATA 668

Dong (Migration) [2017] AATA 668 (4 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duc Trung Dong

CASE NUMBER:  1616392

DIBP REFERENCE(S):  BCC2016/2399835

MEMBER:David Corrigan

DATE:4 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 04 May 2017 at 2:53pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Applicant not enrolled in a registered course – Family’s financial problems – No study deferment requested

LEGISLATION

Migration Act 1958, s 116(1)(b)

Migration Regulation 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 September 2016 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 delegate cancelled the visa on the basis that the applicant had not complied with condition 8202(2) as he had not been enrolled in a registered course.   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. The applicant appeared before the Tribunal on 11 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

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 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?

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. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 14 January 2014.  It also shows that Provider Registration and International Students Management System (PRISMS) records indicate that the applicant was not enrolled in a registered course of study from 1 July 2015 onwards.  The applicant has not disputed that he was not enrolled after this date.

10. 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

11. 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.

12. 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).

    The purpose of the visa holder’s travel to and stay in Australia

13. The applicant submitted a translated copy of a High School diploma and a translated copy of High School reports that show that he passed his subjects and which contains fairly positive comments from his teachers.  The applicant told the Tribunal that he undertook studies in General English and a Certificate I in EAL (Access) and PRISMS records indicate that he finished these courses.  He has submitted a copy of his training plan and his payment schedule agreement from Baxter Institute for his English studies there.  The Tribunal accepts that he completed his studies in these courses and that he applied for the student visa with the intention to study and that he did stay in Australia for a period to study and has given this factor some weight in his favour.

    The extent of compliance with visa conditions

14. The Tribunal has taken into account that the applicant was in breach of condition 8202(2) for a very lengthy period of time from 1 June 2015 until 15 September 2016 when his visa was cancelled.  Overall it considers the extent of the breach is a significant factor that points to cancelling the visa.

15. The Tribunal has no evidence before it that the applicant has not complied with other visa conditions (including a work condition).  It considers this is a consideration that is in his favour and it has taken this into account and given it some weight.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

16. At the hearing, the applicant claimed that after completing his Certificate I on 1 May 2015, his family’s manufacturing business in Vietnam had financial problems and they could not send him the money to continue his studies and that’s why he did not continue with his studies.  The Tribunal asked the applicant to expand on what the problems were on two occasions and he simply stated that because of the problems the company’s income was not as good and was not enough.  The Tribunal considers the applicant’s responses on these questions to be very vague and it notes that no evidence has been submitted that supports that the family business faced financial problems and they were unable to provide him money to fund his studies.  The Tribunal also notes the applicant told it that he had not worked since coming to Australia which further leads the Tribunal to reject that his family’s business encountered financial difficulties and that they were not able to financially support his studies.

17. The applicant told the Tribunal that he did not seek to defer his courses at the education provider and he relied upon his agent.  He said he spoke to the education provider and they told him all the arrangements were done by the agent.  He said his English was limited and had to ask the agent to do it.  Asked who his agent was he said he was in Footscray but the agent was not there anymore.  Asked to name the agent was, he said he could not remember the name of the agent.  The Tribunal found the applicant’s evidence on this to be vague and undetailed and it is not satisfied that the applicant was relying upon an agent as he has claimed.  It also considers his failure to seek a deferment of his studies either by himself or with the help of an agent detracts from his overall credibility.  Considering all the evidence, it does not consider there were exceptional circumstances beyond his control to seek a deferment of his studies on the basis of the claimed financial difficulties of his family and his inability to pay his fees.

18. The Tribunal also has taken into account that despite the applicant being in a breach of an obvious visa condition for a student visa for a long period of time, he told the Tribunal that he did not make any contact with the Department of Immigration to discuss his situation.  The applicant commented that he had thought about that but he did not know how to approach them.  The Tribunal commented that they have telephone interpreters available and he said he did not know that.  The Tribunal is mindful of the difficulties that persons with limited English can have accessing advice and approaching officials; however it also notes that the applicant was in breach of his condition for a very long period of time and he did not make any effort to raise his lack of enrolment with the Department who have available telephone interpreters.  It also considers his failure to contact the Department detracts from his overall credibility.  Considering all the evidence, it considers his failure to contact the Department was not extenuating circumstances beyond his control which led to the ground existing.

19. In his oral submissions at the end of the hearing, the applicant’s agent stated that he had spoken to a third party about a personal matter that he needed to verify and that he wished to make written submissions after the hearing.  The agent also stated that the applicant had a cousin who lives in Australia and that a friend had cheated the applicant as well.  The Tribunal commented that it had previously asked the applicant was there anything further he wanted the Tribunal to take into account and he had said there was nothing else.  The Tribunal gave the applicant the opportunity to comment on the issues that the agent was alluding to but he stated he did not want to talk about them.  In a later written submission the agent did not address the matters that he mentioned at the hearing and the Tribunal is not satisfied on the evidence before it that any of these events occurred or constituted extenuating circumstances beyond the applicant’s control which led to the ground existing.

20. Considering all of the evidence, the Tribunal does not accept that the breach of the condition occurred in extenuating circumstances beyond the applicant’s control.  It considers the circumstances considered as a whole support the cancellation of the visa. 

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

21. The Tribunal accepts that the cancellation of the visa may lead to the applicant having to return to Vietnam and that he would not be able to undertake further studies in Australia.  The Tribunal accepts that an Australian qualification in accounting would be beneficial to the applicant’s employment prospects in Vietnam and may enable him to receive a salary of approximately $25,000 per annum which is greater than he would get without such a qualification.  The applicant told the Tribunal that his family wanted him to increase his education and to come back and help with the family business and he said that his accounting qualification in Vietnam was only at the TAFE level and had no value.  The Tribunal is not satisfied that such a qualification would be of no value at all in Vietnam and it notes the applicant’s family have their own manufacturing business.  The Tribunal also notes the applicant told it that he had not worked since coming to Australia and his family had been financially supporting him which indicates that the family and the applicant do not face difficult financial circumstances given their capacity to do this.  Whilst it accepts that his family want him to increase his level of education by obtaining an Australian qualification it does not accept that this would constitute hardship to them.  

22. The Tribunal considers on the evidence before it, the applicant and his family members are not likely to face any significant degree of financial, psychological, emotional or other hardship if his visa is cancelled and has given this only limited weight in his favour. 

    The visa holder’s past and present behaviour towards the Department (for example, whether a person has been truthful in statements or co-operative in their dealings with the Department)

23. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

24. There are no other persons whose visas would, or may be cancelled and the Tribunal finds this factor is not relevant.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

25. The applicant did not raise any matters that indicated that there would be any breach of any obligations under any relevant international agreements and the Tribunal finds this factor is not relevant.

    The impact of cancellation on any victim of family violence, or if family violence is a factor

26. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds this factor is not relevant.

    Whether there are mandatory legal consequences to a cancellation decision, such as:

    ·     whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations 

    ·     whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

    ·     whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

27. The applicant told the Tribunal he is currently on a bridging visa.Therefore, the cancellation of his student visa will not directly lead to him becoming an unlawful citizen.  Whilst the applicant may eventually become an unlawful non-citizen and liable for detention and removal, the Tribunal gives this factor only limited weight in his favour and finds it does not outweigh other factors that point to the cancellation of the visa.  The Tribunal has also taken into account that the applicant would face being subject to Public Interest Criterion 4013 and a three year exclusion period but the Tribunal gives this factor only limited weight in his favour and finds it does not outweigh other factors that point to the cancellation of the visa. 

28. The Tribunal is not satisfied, on the evidence before it, that indefinite detention is a possible consequence of the cancellation decision because he cannot be removed from Australia consistently with Australia’s non-refoulement obligations.  There are no provisions of the Act that prevent the applicant from validly applying for a protection visa without the Minister personally intervening.  Whilst he may be prevented from making a valid application for other visas without the Minister personally intervening, this is only a factor that the Tribunal gives limited weight in his favour to.   

    Any other relevant matters

29. In the written submission, the agent referred to factors (such as the applicant’s personal ties to his home country, the applicant’s economic circumstances, military service commitments, political and civil unrest in his home country, his potential circumstances in Australia and lack of ties. whether the student visa is being used to maintain ongoing residence, his knowledge of living in Australia and his intended course of study) under Direction No. 53 - Assessing Genuine Temporary Entrant Criterion for Student Visa Applications which the Tribunal does not consider to be relevant given it is not assessing this question and whether he meets such criterion.  The Tribunal does not consider that matters such as the applicant not having military service commitments in Vietnam, his family members presently living in Vietnam, his online research on Australian colleges or his area being isolated from sectarian violence as to relevant to the assessment before it and has given these matters no weight in his favour.  It has however, assessed relevant matters mentioned in the submission in relation to this Direction above.  It accepts that the applicant has not worked since coming to Australia and that the accounting course may not allow him to apply for a residence or work visa but it has given these matters only very limited weight in his favour.

30. In the written submission it also submitted that it is in the public of interest of Australia to preserve a long standing relationship between the Vietnamese embassy (in particular the cultural attaché) and the Department by facilitating resolutions and difficulties faced by Vietnamese students in Australia whose primary objective is only to complete their home studies and return to their home country.  However, the Tribunal is not satisfied on the evidence before it, that Australian-Vietnamese relations at any level will be harmed by the cancellation of this applicant’s visa and noting that the applicant failed to be enrolled in a course for a long period of time and that there were no extenuating circumstances beyond his control that led to the ground existing has given this factor no weight in his favour.  

31. It is also submitted that the number of Vietnamese students is limited and should a reputation develop depicting Vietnamese students facing unnecessary difficulties in their visa process, this will have a negative impact on the number of Vietnamese students who choose Australia as their preferred destination compared to other places in the world where the visa process is much simpler for Vietnamese students.  Noting that the applicant failed to be enrolled in a course for a long period of time and that there were no extenuating circumstances beyond his control that led to the ground existing, the Tribunal has given this factor no weight in his favour.

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

    DECISION

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

    David Corrigan
    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.