Duong (Migration)

[2019] AATA 5679

Duong (Migration) [2019] AATA 5679 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Van Tuong Duong

CASE NUMBER:  1905520

HOME AFFAIRS REFERENCE(S):     BCC2018/5317801

MEMBERS:Dr Jason Harkess

DATE:13 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa

Statement made on 13 August 2019 at 4:49pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Diploma of Leadership and Management – not enrolled in registered course for 11 months – enrolment cancelled – unsatisfactory course progress – emotional issues – separated from family – failed to take steps to remedy situation – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of Vietnam. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 22 February 2019 cancelling his Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 10 February 2015 with an original expiry date of 15 March 2019, providing for more than 4 years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. Specifically, it was granted on the basis that he would enrol in and complete a Bachelor of Business degree.

3. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The Applicant appeared before the Tribunal on 1 August 2019 to give evidence and present arguments.

6. The Tribunal was assisted by an interpreter of the Vietnamese and English languages.

7. For the following reasons, the Tribunal has decided to affirm the decision to cancel the visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 9 March 2018 to 22 February 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to 11 months during which the Applicant was alleged to be in continuous breach of the visa.

2. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s Confirmation of Enrolment (‘CoE’) in a course for which they had previously been enrolled and the reasons for doing so.

   [1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The PRISMS report obtained by the delegate indicated that the Applicant’s course provider had cancelled the Applicant’s enrolment in Diploma of Leadership and Management on 9 March 2018 due to unsatisfactory course progress.

4. The Department of Home Affairs wrote to the Applicant on 30 January 2019, notifying him of its intention to consider cancelling his student visa (‘the NaOICC’). 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.

5. The Applicant replied to the NOICC on 19 February 2019 (‘the NOICC response’). In that response, he did not dispute the fact that he had been in breach of his student visa for the period alleged. At the hearing before the Tribunal, the Applicant conceded that he was in breach of his student visa for the period alleged by the delegate.

6. Based on the available information and material, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of the visa.

Consideration of the Discretion to Cancel the Visa

1. 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The matters that ought to be considered are specifically listed in PAM3 as follows:

   ·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   ·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

   ·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   ·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   ·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

   ·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   ·whether there are mandatory legal consequences arising from a decision to cancel the visa;

   ·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202

1. The Applicant stated in evidence that his reason for not being enrolled was that he got married is that his wife and child were not with him while he was in Australia. The Applicant’s first child was born on 17 March 2017 and, since December 2017, has remained Vietnam. The Applicant stated that during 2018 his wife and child were not with him while he was in Australia and he found this difficult to deal with. The Applicant also referred to the ailing health of his father. The Applicant decided to take a break from his studies.

2. The Tribunal inquired of the Applicant as to why he did not seek a deferral of his studies if he found it so difficult to be apart from his family. The Applicant said that he was ‘stressed’ and did not know how to get such permission. He said that he ‘basically had no idea’ what to do. The Applicant said that he spent most days in 2018 being under stress, staying in his house all day, sometimes picking up a book, sometimes watching a movie to relieve stress, and sometimes sleeping. The Applicant asserted that he was in psychological distress and this essentially explains his cessation of studies.

3. Being away from family and loved-ones, and learning about family members’ problems while away from home, are unkind life stressors that everyone must deal with at some point. Non-Australian citizens on student visas in Australia are no exception. Many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they are having to deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the Applicant.

4. In such circumstances, registered course providers and the Department have in place policies that permit the exercise of discretion for compassionate reasons that will allow a student visa holder some latitude in having to deal with a difficult personal situation. The cancellation of an enrolment and the subsequent cancellation of a visa is a last resort. However, the exercise of a discretion to refrain from cancelling an international student’s enrolment, or to refrain from cancelling their visa, is premised on the visa holder taking positive steps to bring their personal issues to the attention of the relevant authorities and by producing evidence that corroborates their claims. In this case, the Applicant did not do so. He neither contacted staff at his course provider, nor staff at the Department, to inform them of the personal difficulties he was having.

5. The Applicant’s failure to take steps to seek help, to alert his course provider of his problems, or to alert the Department as to his personal situation has not assisted his case. It is not what a reasonable student visa holder would have done in this kind of situation. His failure to do anything in this regard resulted in an ongoing breach of his visa. There is no psychological evidence, beyond that the evidence of the Applicant himself, that provides an adequate account of his mental state at the time. The Tribunal is therefore unable to form any view as to whether the Applicant was suffering any clinically diagnosable mental health condition that puts his suffering into a category that goes beyond the ordinary mental difficulties that ordinary people generally suffer on a day to day basis in dealing with life’s stressors, and that this may have been a cause of him effectively doing nothing to get his studies back on track.

6. In these circumstances, the Tribunal is not satisfied with his explanation as to why he remained in continuous breach of his student visa. It seems that he simply could not be bothered to prioritise his studies in Australia in accordance with the legal requirements of his visa.

Purpose of Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis. That purpose was effectively defeated when the Applicant ceased studying.

2. The Applicant stated in evidence that he wishes to continue with studying in Australia so that he can return to his home country with an Australian qualification. However, the Tribunal is of the view that his claims of wanting to continue with formal studies in Australia are somewhat disingenuous. There is no evidence before the Tribunal indicating that the Applicant made any substantial progress in any course in which he was enrolled beyond his first year in Australia studying English. If study was that important to him, he would have not ceased his enrolment for such a lengthy period of time. The Tribunal is unable to discern a compelling need for the Applicant to remain in Australia.

Extent of Applicant’s Compliance with Visa Conditions

1. The Applicant’s breach of his visa, which lasted for 11 months, represents a significant proportion of the visa grant period. This is a significant factor that weighs in favour of cancelling his visa. The Tribunal is not aware of non-compliance with other visa conditions.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification.

2. However, that desire must be tempered with the extent of his non-compliance with the conditions of the visa. It was a student visa which obliged him to prioritise studying in Australia the entire time he has been here. In the Tribunal’s view, he has not provided a satisfactory explanation for not complying with that fundamental condition. It seems that he has fundamentally failed to utilise his student visa effectively for the purpose it was designed to serve.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and 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 options to apply for further visas from within Australia. He will also be subject to a three-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 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of visa conditions.

2. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of Vietnam and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

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

Conclusion

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

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member