HA (Migration)

[2019] AATA 1062

HA (Migration) [2019] AATA 1062 (13 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MANH CUONG HA

CASE NUMBER:  1709472

HOME AFFAIRS REFERENCE(S):           BCC2017/418238

MEMBER:Stephen Witts

DATE:13 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 13 March 2019 at 9:04am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – tentative employment offer in Vietnam – value of proposed Advanced Diploma course – family problems – significant breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 26 April 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 applicant, Mr Manh Cuong Ha, a citizen of Vietnam, was granted a visa to study in Australia.

3. The delegate cancelled the visa on the basis that the applicant had not maintained enrolment in a registered course and the grounds for cancelling the visa outweigh the grounds for not cancelling the visa. 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 6 March 2019 to give evidence and present arguments.

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. According to the delegate’s decision record, provided to the Tribunal by the applicant, the applicant has not been enrolled in a registered course between 16 October 2016 and 6 April 2017, and that therefore the applicant did not comply with condition 8202(2)(a).

10. According to the delegate’s decision record the applicant was granted a Higher Education Sector visa on the basis of undertaking a Bachelor of Business (Management) which was subsequently cancelled. According to the delegate since being granted his TU-573 Higher Education Sector visa he has completed four registered courses, and has remained onshore without studying since he completed his Certificate III in Retail Baking (Cake and Pastry) course on 16 October 2016.

11. According to the delegate’s decision record it gave weight to the fact that prior to 6 April 2017 the applicant was not enrolled in a registered course of study for a period of several months which, the delegate asserted, was an extensive breach.

12. According to the delegate’s decision record the applicant was notified of the intention to consider cancellation (NOICC) on 17 March 2017 and the notice invited the applicant to respond in writing.

13. The applicant responded on 12 April 2017 (delegates file folio 35-36). In this response the applicant asserted that he wanted to continue studying in Australia as his parents will be disappointed about his studies if he did not and that his parents will be disappointed in him if he returned to Vietnam. The applicant stated that he wants to focus on his study here, complete a bachelor degree and return to Vietnam to look after his parents.

14. The applicant provided a Letter of Commitment (AAT file folio 36) headed the Socialist Republic of Vietnam and signed by a Mr Ngo Thi Huong from the Huong Son One Member Company stating that he wants the applicant to return home and contribute to this company as a future employee.

15. The applicant also provided a personal letter dated 27 February 2019 (AAT file folio 34) where he stated that he is keen on acquiring further qualifications in leadership and management. The applicant also provided a letter of offer from Sacred Heart International College which indicates a prospective enrolment in an Advanced Diploma of Leadership and Management that will begin on 29 April 2019 and complete on 17 January 2021.

16. The applicant also provided a letter of confirmation signed by Ha truong Tho, a neighbour in Vietnam, dated 12 February 2019 (AAT file Folio 30 to) that the applicant’s family had a problem between September 2016 and March 2017 where two members of that family had various quarrels and conflicts. This letter stated that the incident affected the children including the applicant.

17. The applicant provided a letter of confirmation dated 12 February 2019 (AAT file folio 30) signed by the applicant’s father and mother stating that he would like to continue his unfinished study. His mother also indicated in this letter that there had been a separation between his parents at that point of time. The applicant later confirmed that his parents were still in a married relationship.

18. Adopting the procedure under the Act 359AA the Tribunal reviewed the applicant’s study history with him paying particular regard to the applicant’s PRISMS record. The Tribunal asked the applicant if he wished for some additional time to consider this record prior to having a discussion with the Tribunal.

19. The applicant indicated that he was able to have a discussion with the Tribunal regarding his academic record.

20. According to the applicant’s PRISMS record the applicant has been enrolled in the following courses here in Australia:

    a)    Certificates I and II in ESL cancelled in 2014

    b)    Certificate II in EAL finished in 2014

    c)    Certificate III and IV in ESL cancelled in 2014

    d)    Bachelor of Business (Management) cancelled in 2014 and again in 2015

    e)    Certificate III in EAL finished in 2015

    f)     Certificate III in Retail Baking (Cake and Pastry) finished in 2015

    g)    IELTS Preparation cancelled in 2017

    h)    Diploma of Leadership and Management cancelled in 2017

    i)   Bachelor of Business (Management) cancelled in 2018

21. The Tribunal noted to the applicant that the delegate has contended that the applicant was not enrolled from 16 October 2016 until 6 April 2017.

22. The Tribunal had a discussion with the applicant in regards to the circumstances of his study during this period of time.

23. The applicant stated that he did successfully complete his Diploma of Leadership and Management on 22 July 2018 and provided to the Tribunal a statement of completion which the Tribunal accepts as accurate.

24. The Tribunal then discussed with the applicant whether he was enrolled in a course of study between 16 October 2016, when he completed his Certificate III in Retail Baking (Cake and Pastry) and 6 April 2017. This was a period of time contended by the delegate that the applicant was not enrolled in a course of study. The applicant stated to the Tribunal that he was not enrolled to study a course here in Australia during that period of time and acknowledged that the Department was correct in contending that he was not enrolled during this time.

25. 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

26. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

27. 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’

28. The Tribunal has considered any submissions provided to the Department and the Tribunal, and also the evidence taken at the hearing at the Tribunal.

    ·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

29. The applicant stated that he first came to Australia on a student visa on 13 January 2014 to study here as his parents and friends recommended it to him. He stated that he completed high school back in his home country and studied for a Diploma of Business back in Vietnam but that the quality of education was not good back in his home country so he decided to come to Australia to study.

30. The applicant stated that he has his parents back in Vietnam who work in a grocery business distributing amongst other things, fish sauce. He stated that he has two younger sisters, one of which is only five years old.

31. The applicant stated he rents in Sunshine in Melbourne and lives by himself and has not been working or studying for some two years now and is being supported by his parents. He stated that during his five years here he has worked in a baking business and in a sushi shop.

32. The applicant stated that he wishes to return to study here and complete his study and return home to Vietnam where, he says, he has a tentative job offer from a family friend, Mr Huong, who stated in his letter of commitment dated 13 February 2019 referred to above, (AAT file folio 36) that he expects the applicant to return to work but that he must have an Advanced Diploma of Leadership and Management gained in Australia.

33. The Tribunal had a discussion with the applicant regarding this matter and the applicant confirmed that he has a letter of offer to study an Advanced Diploma of Leadership and Management and that he needs to gain this qualification in Australia prior to returning home. The Tribunal noted to the applicant that he has now been here for a five-year period and has studied and completed two English courses, a retail baking course, and has acquired, in his submission, a Diploma of Leadership and Management. The Tribunal asked the applicant to outline what he would gain from an advanced diploma in this discipline that he has not already gained in his diploma level course. The applicant stated that his advanced diploma is a better course than his diploma which was a baseline course and that this qualification will be useful to him in his new job back in Vietnam. The Tribunal has considered this matter and does not accept this evidence that the applicant actually needs his Advanced Diploma of Leadership and Management to return home to take up this job offer offered by a family friend. The applicant did not provide any credible evidence that this latest enrolment will actually assist him in his stated future career intentions. The Tribunal finds that this evidence provided by the applicant’s family friend in his dairy and food products company is contrived and that, in fact, the applicant would not need an Advanced Diploma in Leadership and Management to work back in a company involved in trading dairy and food products owned and controlled by his family friend back in his home country.

34. The Tribunal had a discussion with the applicant regarding any compelling need he had to remain in Australia and study here rather than return back to his home country. The applicant stated that he wished to complete his courses here as they are better and the qualifications are better and it would also give him an opportunity to improve his English. He stated that he couldn’t get a job in this company back in his home country if he did not get an advanced diploma. The applicant did not provide any specific evidence as to why this was the case and did not produce any specific evidence as to what skills he would learn in his prospective enrolment that will be required to carry out this job function. The Tribunal, although mindful that an advanced diploma could be considered a better qualification back in his home country than a diploma does not accept the evidence by the applicant that it would be a mandatory requirement for him to take up a position in the company and finds that the statement made by the applicant’s family friend that the applicant needs an advanced diploma qualification to be a contrived statement to allow the applicant to remain in Australia for a period of time on a student visa.

35. The applicant provided evidence that he had had family problems for a period of time whilst here in Australia and referred the Tribunal to the applicant’s personal letter of 27 February 2019 (AAT file folio 34) where the applicant stated that his parents had had relationship problems and had considered family separation leading to divorce and that this had created stress for himself and for his sister. He also noted that he wanted to return home to Vietnam but did not because of his father’s wishes. He confirmed that he has not travelled back to his home country since his arrival here in January 2014. The Tribunal accepts that the applicant may have been upset by this family issue, and the Tribunal acknowledges the material provided by the applicant’s mother and father (AAT file folio 30) where it was stated that his parents had relationship problems. The Tribunal accepts this evidence that this would have caused the applicant some problems in his study here for a period of time but finds that it is not sufficient evidence to justify his visa breach during his period of non-enrolment.

36. The Tribunal finds that this does not demonstrate that the applicant has a compelling need to remain here as a student and take up an enrolment in an Advanced Diploma of Leadership and Management.

37. On this basis the Tribunal finds that the applicant does not have a compelling need to remain in Australia on student visas.

    ·the extent of compliance with visa conditions

38. The Tribunal has found that the applicant was in breach of his student visa conditions by not maintaining his enrolment in a registered course between 16 October 2016 and 6 April 2017. But there is no evidence to indicate the applicant has breached other conditions.

39. The applicant also acknowledged that he did not contact the Department or make any effort to inform the Department that he was not enrolled and did not study during a significant part of his student visa period.

40. The Tribunal expects that a visa holder will generally adhere to the conditions of their visa and the Tribunal is mindful of the significance of the breach. As such the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

41. The applicant gave evidence to the Tribunal that he would suffer hardship returning home to Vietnam without his Advanced Diploma of Leadership and Management as his parents were relying on him to study successfully and then return home. He also stated that his neighbours will not respect him enough because of his lack of study success here in Australia. The Tribunal accepts that the applicant’s parents may be disappointed in him for not pursuing further enrolments to a successful conclusion in the five years he has lived here. However the Tribunal does not accept that the applicant after having been here for a significant period of time and having successfully completed two English level courses, and a retail baking course, and a Diploma of Leadership and Management, in his submission, would suffer a degree of hardship of a financial, emotional or psychological nature by not being able to remain here and study for his Advanced Diploma of Leadership and Management. The Tribunal therefore finds that the applicant would not suffer hardship should he return home and not be able to study for an advanced diploma here in Australia.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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

42. The applicant acknowledged that he was not enrolled to study a course here in Australia during the period of time contended by the delegate. The applicant stated that he was unable to maintain his enrolment during this time because of stress he suffered with his parents going through relationship problems that affected both himself and his sister. The applicant stated that he wanted to return home but that his father told him he couldn’t. The Tribunal accepts the evidence provided by the applicant that he would have suffered some emotional distress during this period of time but finds that this evidence is not sufficient to justify the applicant’s significant periods of non-enrolment and his courses of study here, and his many cancellations, during his time here.

43. The Tribunal, although acknowledging that the applicant would have had difficulties for a period of time, does not accept that this is an adequate explanation that demonstrates that the applicant’s visa was cancelled through circumstances that were beyond his control. It is up to the visa holder to maintain enrolment and progress academically and to inform the Department of his current visa status here in Australia and then make arrangements that ensures that his visa is not cancelled.

44. The applicant also put evidence to the Tribunal that he had had a problem on at least one occasion with an educational Institute, the Baxter Institute, cancelling his course in English studies that he said was actually not his fault. The applicant did not provide any other specific evidence in regard to this and the Tribunal finds that this evidence does not constitute a circumstance that gives the Tribunal confidence that it was beyond the applicant’s control.

45. The Tribunal therefore finds that there are no grounds for cancellation beyond the visa holder’s control.

    ·past and present behaviour of the visa holder towards the department

46. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the department or the Tribunal in his dealings. However, this is expected of all visa holders.

    ·whether there would be consequential cancellations under s.140

47. There is no evidence of consequential cancellations under s.140.

    ·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

48. The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia pursuant to ss. 189 and 198, and it may be difficult to be granted further visas, and he may be subject to a three-year exclusion period are less relevant Public Interest Criterion is met.

49. It is unlikely however that the visa applicant will be detained but rather provided with a time-limited period in which he can leave the country or apply for review of the decision.

    ·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

1. There is nothing before the Tribunal to indicate any international obligations to consider.

   ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

2. No such considerations are relevant in this case.

   ·any other relevant matters.

3. The applicant stated that he had made a mistake not studying successfully for a period of time but that he wants to achieve his qualification in leadership and management and go back to his own country to further his career. He stated that he has enjoyed his life here in Australia and that Australia is a good place. He stated that the education levels here in Australia are very high and that his parents had been supporting him here. He stated to the Tribunal that he was sorry he was not enrolled and that at times he has felt disappointed by this. He stated that he was planning to go home to Vietnam and pursue his career.

4. The Tribunal is mindful the applicant was disappointed by his study here and has considered the evidence provided by the applicant in regard to his family circumstances back in his home country and his circumstances here. The Tribunal finds that the applicant has not demonstrated a compelling need to remain here as a student and nor has the applicant outlined to the Tribunal a degree of hardship that convinces the Tribunal that the applicant should not have his visa cancelled.

5. The applicant does have two English language qualifications, a baking qualification, and a Diploma of Leadership and Management. The applicant has been successful in achieving some qualifications. The Tribunal does not accept that staying here for a period of time and getting an Advanced Diploma of Leadership and Management will provide any more assistance to the applicant in his stated future intentions of a career back in his home country. As stated above the Tribunal has considered the evidence provided by the applicant’s family friend that he needs an Advanced Diploma of Leadership and Management to take up this job in trading dairy and food products but finds that this is a contrived arrangement to allow the applicant to stay here and study another low-level qualification.

6. The Tribunal appreciates an education from Australia may enhance the applicant’s career, however as noted above the applicant already has some qualifications gained here, and returning to Vietnam at this point would not prevent him from gaining employment back in his home country. The population and economy of Vietnam is significant and there are many people in full-time professional employment without a specific education from Australia. It is also relevant to the Tribunal that the applicant already has some qualifications gained here and has not proceeded with his original high level bachelor level qualifications in business here in Australia in any case. The Tribunal finds that the applicant’s potential future enrolment will not assist him to develop his career back in Vietnam.

7. The Tribunal has considered the applicant statements and the evidence given at the hearing however the breach is significant. The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. The Tribunal finds that the breach was significant. As such, considering the circumstances outlined by the applicant, the Tribunal concludes that the visa should be cancelled.

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

   DECISION

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

   Stephen Witts
   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.