Ho (Migration)

[2019] AATA 1538

Ho (Migration) [2019] AATA 1538 (10 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thanh Tung Ho

CASE NUMBER:  1705150

HOME AFFAIRS REFERENCE(S):           BCC2017/256192

MEMBER:Helen Kroger

DATE:10 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 10 February 2019 at 1:15pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant failed to re-enrol – applicant recovering after assault – failure to inform education provider or Department – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 116,
Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 March 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 Ho, a Vietnamese national, was granted a visa on 11 July 2013 for the purpose of studying in Australia.

3. On the 13 February 2017, Mr Ho was sent a Notice of Intention to Consider Cancellation of his student visa inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The applicant provided a statement of explanation to the delegate on 8 March 2017, through his then appointed migration agent.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed 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.

5. The applicant provided a copy of the delegate’s decision to the Tribunal and appeared before the Tribunal on 31 January 2019 to give evidence and present arguments. A witness, Ms Tran, provided evidence to the Tribunal and the applicant’s appointed migration representative attended the hearing.

6. 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

7. 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?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was invited to respond to the NOICC on the 13 February 2017 and the applicant provided a written response through his migration agent, to the Department, dated 7 March 2017. At the hearing, the alleged breach (as discussed by the delegate in his/her decision), was put to the applicant and reference was made to the delegate’s decision record that he had not studied since 6 June 2014 and has not been enrolled in a registered course of study since 13 April 2016. This was not disputed by the applicant during the hearing who provided an explanation as to why he didn’t continue his studies.

10. On the evidence before the Tribunal, namely the applicant’s admission during the hearing and the explanatory statement sent to the Department on 8 March 2017, the Tribunal finds that 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 the visa should be cancelled.

12. 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’.

13. The Tribunal has considered the applicant’s evidence provided at the hearing along with the written documentation provided to the Tribunal on the 31 January 2019, including the submission provided by the migration agent on behalf of the applicant and a Psychological Report tabled at the beginning of the hearing.

14. The information provided to the Tribunal at the hearing has been considered by the tribunal in its exercise of discretion as outlined below.

    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

15. The applicant is 32 and eight months years of age, a Vietnamese national who travelled to Australia in 2013 for the purpose of studying and was enrolled in a Bachelor of Engineering at Deakin University. He successfully completed  ELICOS at Melbourne Institute of Business Studies Pty Ltd (Deakin, Burwood Campus) before continuing with a Certificate 1V in Tertiary Preparation Program, that he was studying at the Geelong campus.  Evidence before the Tribunal consistently indicates that he ceased attending classes after approximately 4 months, following the claimed assault.

16. Mr Ho was assaulted by his employer in May 2014 that he claims affected his mental health, and he dropped out of studies 4 months later. He indicated to the Tribunal that he had saved money for his fees, along with some financial support from his parents, and explained that he had not informed his parents that he had not been studying since 2014.

17. The applicant has worked in Japan prior to coming to Australia in the machinery maintenance and quality control sector and had enrolled to continue studies in engineering. He explained to the Tribunal that he would like to study the construction or building area as they were areas that offered a lot of future opportunity in Australia and Vietnam. He stated that he didn’t want to return to Vietnam with ‘nothing’ because of the effect that that would have on his family, particularly his parents and was interested in the possibility of applying for permanent residency at some time after qualification.

18. The Tribunal accepts that the applicant commenced his course upon his arrival in Australia and dropped his studies immediately after the assault, however given the significance of the period in which he was not enrolled in a registered course of study, and the fact that he did not advise his education provider or the Department of the changed circumstances, or considered returning at home to address his personal circumstances, the Tribunal finds that these considerations outweigh any weight given in favour of not cancelling the applicant’s visa.

    Circumstances in which the ground for cancellation arose

19. The applicant explained at hearing that he was “hit” by his employer in May 2014 which dramatically affected his well-being, leading him to drop out of College and withdrawing from many aspects of daily life. He submitted at hearing that he became fearful and depressed, kept to himself inside the shared accommodation he was living in and didn’t talk to anyone. The applicant provided a copy of the police report that was filed, identified as Incident No 140169672(folio 47). He submitted that he has sought medical attention only on two or “so” occasions since his arrival in Australia. There is no evidence before the Tribunal to indicate that the applicant suffered any physical injuries during the assault, and there is no documentation or reports presented, dated at the time of the assault, that could provide an indication of the applicant’s physical condition or mental health at that time.  He explained to the Tribunal that he was fearful going out and seeing anyone and in the Psychologist report, prepared for the hearing, it is asserted in paragraph 25 that he had lost confidence in himself.

20. In his submission dated 27 November 2018, made by the migration agent on his behalf , he claims that he was “in a vulnerable position. He was assaulted by his employer, a person in position of power over him. Mr Ho became withdrawn and depressed immediately after the assault and withdrew from attendance.”  The applicant’s evidence at hearing was consistent with the above statement and he indicated that he spoke with and took counsel from members of  the local Vietnamese community, as he was keen to sue his former employer for damages.  He was advised not to pursue this particular course of action as it would not be beneficial to his visa status. When asked if he sought medical assistance at this time, he indicated that he couldn’t afford it and that he had also become reclusive and wasn’t talking to anyone. The Tribunal has had regard to this admitted evidence and considered the applicant’s comments about seeking advice on his legal options against his former employer at the time of the incident, and the fact that there is no indication that he sought assistance for his physical or mental health at the same time. The Tribunal has no tolerance for personal or physical abuse and has sympathy for the situation that the applicant found himself in.  It recognises the initiative of the applicant in seeking community advice about his legal options, but recognises that he did not avail himself of any possible advice with regard to  local medical and counselling support networks or clinics in order to address his depressive state that stopped him from studying. The Tribunal recognises that the applicant found the incident distressing and was sufficiently able to consider taking action against the employer but did not have the capacity to seek support services, either locally or through the established student services provided by the College. Accordingly, the Tribunal places minimum weight to this claim.The applicant provided a written explanatory statement to the Department on the 8 March 2017, following receipt of the NOICC on the 13 February 2017. In this statement, and consistently in all evidence submitted since, the applicant claims that the education provider were negligent in not notifying the student of its intention to report him for unsatisfactory attendance. Deakin College have acknowledged this in writing and the Tribunal has considered evidence that indicates that the College sent a letter to the applicant, dated 17 June 2014, entitled “Intervention Program”.  The “Intervention Program” is detailed under the College’s Academic Progress Procedure guidelines for staff and students, and is a program designed to identify students who are failing to obtain a final grade of “Pass” or higher in 50 percent or more of the study load undertaken. The procedure guideline reads:

    As part of intervention program, students identified as at risk are required to attend a compulsory interview with Student Services, Academic Coordinators or responsible lecturers depending on designation from Student and Academic Services Manager and will be provided an opportunity to discuss their lack of academic progress and counselled in identifying its cause, whether academic or personal. At the interview, students will be counselled regarding the following:

    failure to maintain satisfactory academic progress will result in their being considered for exclusion from Deakin College. For overseas students on a student visa, this will also result in Deakin College reporting to the applicable Australian Government higher education and immigration agencies through the Provider Registration and International Student Management System (PRISMS). This may result in the loss of their student visa.

    further intervention strategies may be developed, as required for student’s given circumstances. Additional intervention strategies may include referrals to counselling or other professional support services (including the Disability Resource Centre), a reduction in course load, English language support, referral to skills workshops, assistance with study and revision planning or change of course….

21. The applicant submitted at hearing that he had not provided Deakin College with his updated contact details and was not in a state of mind where he was checking emails or thinking about his course. Whilst the Tribunal recognises that the applicant may not have received the warning letter, as part of the Intervention Program outlined above, it has also considered that it is the responsibility of the applicant to provide any changed contact details, including a change of address, to the education provider within 7 days, as part of the condition attached to the student visa.  It is not reasonable for the applicant to complain that he has not received communications regarding the status of his enrolment if he has not updated the education provider with the updated contact details.

22. Notwithstanding the above circumstances, according to PRISMS as identified in the delegate’s decision, the applicant has not studied since 6 June 2014 and has not been enrolled in a registered course of study since 13 April 2016.

23. Ms Tran, a witness at hearing, submitted that the applicant needed to rebuild his life and that Australia was a “more humane country” that would look after him and enable him to study and work. The applicant submitted that he recommenced work on a casual or part time basis approximately 12 months after the assault and has built up substantial savings of $30,000 since. This submission was not consistent with the Psychological Report provided by Mr Jeffrey Cummins, and dated 23 January 2018, that reports that the applicant has not been engaged in paid work since the 20 May 2014. The applicant submitted at hearing that he was worried about his mother’s state of mind if he returned without a qualification and that he didn’t want to return to Vietnam with “nothing”.

24. The Tribunal has carefully considered the body of evidence before it and has some sympathy with the circumstances that contributed to the applicant dropping out of his studies and regard to the applicant’s claim that he could not pay for the continued to studies, and that he worked to raise some capital. The applicant has managed to save a considerable sum of $30,000 since, notwithstanding his claim that he only works part time on a cash basis, and has not declared his income to Australian authorities as his previous employer had paid more tax than was necessary, implying that he had no further tax obligations to the Australian Tax Office. Given the significance of the breach and the period time of some thirty four months that he hasn’t been studying, at the time of the decision, and that he hasn’t been enrolled since 13 April 2016 and that he didn’t attempt to contact his education provider or the Department of the changed circumstances, nor chose to return home to deal with his personal situation, the Tribunal finds that these considerations significantly outweigh any weight given against cancelling the applicant’s visa.

    The extent of compliance with visa conditions

25. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on 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)

26. The applicant explained at hearing his concern about his family in Vietnam and the impact on them should he return home without a qualification.  He is one of seven children with parents in their 60’s. He has no other family in Australia and has never married. He indicated his concern about his “elderly” parents and in particular his concern for his mother and her state of mind. He explained he was “fearful” to return home and when asked to explain this, claims that his parents would be shocked as they had allowed him to travel to Australia to study and he would be returning with nothing to show for the years here. He has not returned to Vietnam to visit since arriving in Australia and there is no evidence before the Tribunal to indicate this was a consideration when he was suffering after the assault.

27. The applicant indicated that his parents thought that he was still attending school and that he hadn’t informed then about the changed circumstances or his migration status. Consistent evidence suggests that it is with the support of the witness Ms Tran, that he has re-established his life in Australia after the incident, and that she has supported him by providing accommodation and getting him involved in church and volunteer community activities which have rebuilt his confidence. The Tribunal recognises the important role she has undertaken in developing his confidence, and has had regard to the evidence that his confidence was developing sufficiently to enable him to work some 12 months after the incident in 2015. The applicant indicated that he didn’t resume studies because he had no money and the Tribunal has considered the conditions attached to his student visa, and his responsibility to advise the education provider and the Department of these changed circumstances.

28. Since he resumed work, the applicant has indicated that he has savings of $30,000 that he has accrued that he could direct to the payment of his course fees. This is not consistent with written evidence provided by Ms Tran’s written statement, and the Psychologist Report that both make reference to the fact that the applicant doesn’t work. The Pschologist Report is dated 23 January 2018 following an interview with the applicant on the 17 January 2018. The report provides an account of the facts that were presented to the Psychologist and his opinion formed, following an analysis of the facts as described, with a conclusion that:

    In my opinion it is very plausible that being assaulted at work and being assaulted by someone who was his Vietnamese supervisor and then being deprived of his monthly pay packet, did traumatise him to the point where he was no longer able to persever with his studies.

29. Ms Tran explained to the Tribunal that she first met the applicant when she observed that he couldn’t pay for some take away food he was purchasing for a few dollars, and he later moved in to a residence she owned, where he continues to live with relatives of Ms Tran’s. She submitted to the Tribunal the fragile state the applicant was in, the support she provided, and confirmed that the only support the applicant received was from her and that he had not received any professional advice and that she had shared some personal medication to assist him. She told the Tribunal that she believed that the best opportunities for the applicant were if he was to stay in Australia and that he would be better cared for if he stayed in Australia.

30. The Tribunal has carefully considered the opinion provided in the Psychologist report, the challenges faced in providing medical hypotheses on the basis of  the information presented, the evidence provided by Ms Tran and applicant at hearing and in writing, and the current capacity of the applicant.

31. Whilst the Tribunal has sympathy with the applicant’s concern about the welfare of his family, and in particular, his parents, and recognises the inevitability of their disappointment should he return to Vietnam without a qualification, the Tribunal has considered the time that has elapsed during which the applicant has not studied and considered the opportunities that may have been presented for him to deal with the current circumstances with them. The applicant has submitted that he has saved $30,000, since he re-commenced working, an opportunity he is availing himself of at the present time, an opportunity that dissipates should he leave Australia. Given that the primary purpose of the applicant’s visa is to study in Australia, it does not give any weight to potential hardship faced in not earning this income in Australia and considers it a substantial sum that will be able to use towards his re-settlement.

1. Whilst the Tribunal gives consideration to the above circumstances and is not unsympathetic with the situation the applicant found himself in, the Tribunal has considered the applicant’s actions in not contacting the Department to advise the delegate of the situation or not considering other possible courses of action in view of the requirements imposed on the visa that the applicant held. Given these circumstances, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the period in which the applicant was not enrolled in a registered course of study

   Past and present behaviour of the visa holder towards the department

2. 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 and should not outweigh the significance of the breach.

   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

3. It is unlikely that the visa applicant would 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 would be reached as a result of a cancellation

4. There is nothing before the Tribunal to indicate there are international obligations to consider.

   Any other relevant matters

5. The Tribunal has considered the explanatory statements submitted and evidence given at hearing and the applicant submitted at hearing that he would like to pursue building or construction should he be allowed to stay in Australia as it was something he was more interested. He was unable to provide the Tribunal with any particular detail of a course of interest, or give any indication that he had given serious though to possible education providers, the length of the courses offered or the associated costs. He indicated an interest in the building sector because it was rapidly growing in Australia and he wanted to return to Vietnam to rebuild his country.  There was no evidence to indicate any immediate hopes or aspirations with regard to potential studies.

6. The Tribunal has considered the applicant’s statements however the breach is significant. As a visa holder who is bound by the conditions on the visa, he made no attempt to inform the Department or the education provider, or rectify the situation and the Tribunal places significant weight on the length of the breach. The fact that the applicant was affected by the assault, does not explain why he was able to resume working some 12 months later, but was not able to study. As such, the Tribunal finds that the length and significance of the breach outweighs the applicant’s explanations.

7. The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. The Tribunal finds that the breach in excess of two years is significant in the context of a student’s study period and the fact that he would be well aware of the expectations placed on him, along with the fact that he made no attempt to contact the Department, and indeed, made no attempt to return home. As such, considering the circumstances as outlined by the applicant during the hearing, 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.

   Helen Kroger
   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.