Ho (Migration)

[2019] AATA 881

Ho (Migration) [2019] AATA 881 (5 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Van Ho

CASE NUMBER:  1706148

HOME AFFAIRS REFERENCE(S):           BCC2016/4298175

MEMBER:Helen Kroger

DATE:5 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 05 February 2019 at 4:49pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – failed to maintain enrolment – consideration of discretion – non-compliance period of 18 months – degree of hardship – married an Australian citizen – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1) subject to subjections (2) and (3), whereby the Minister may cancel a visa if he/she is satisfied that: (b) its holder has not complied with a condition of the visa on the basis that the visa applicant did not comply with s116(1)(b) breach of condition – 8516, which is attached to the TU-573 Higher Education Sector 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.

3. The applicant appeared before the Tribunal on 29 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  The applicant’s appointed migration agent was not in attendance.

4. The applicant provided a copy of the delegate’s decision for the purpose of consideration.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

7. The visa applicant, a Vietnamese national, was granted a Subclass 573 Higher Education Sector student visa on the 26 February 2014  for the purposes of studying in Australia, with condition 8516 attached.

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8516 was attached to the applicant’s visa.

9. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary and secondary criteria, as the case requires, for the grant of the visa. In respect of a criterion, requiring the applicant to be enrolled, it has been held that this requires the applicant to maintain enrolment while they hold the visa : Singh v MIBP[2016] FCA 679.

10. In the present case the applicant was required to meet, among other criteria, subclause 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994.

11. Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI12/037.

12. The courses specified by the Minister in instrument IMMI12/037 for a subclass 573 visa (granted prior to IMMI12/037) are:

    ·Higher Education Diploma

    ·Higher Education Advanced Diploma

    ·Bachelor Degree

    ·Graduate Certificate

    ·Graduate Diploma

    ·Associate Degree

    ·Masters by Coursework.

13. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor degree, Master’s degree by coursework or, for visa applications made on or after 12 November 2012, an advanced diploma in the higher education sector: cl.573.111.

14. According to the decision record submitted by the applicant when her review application had been lodged, the applicant was granted a class TU subclass 573 on 26 February 2014; and that according to the Provider Registration and International Student Management Systems (PRISMS), the applicant was not enrolled in a bachelor’s degree or master’s degree course since 2 September 2015, or enrolled in a principal course as specified in IMMI 12/037(as identified above). The applicant confirmed during the hearing, that she had initially enrolled in English for Further Studies, a Diploma of Business and Bachelor of Business but did not commence the Diploma as she did not complete her English for Further Studies. The applicant claimed at hearing that she discontinued these studies in early 2015 and later enrolled in a Diploma of Business with another education provider in 2016. The applicant did not dispute that she had not been enrolled in a course of study that is the type specified for a Subclass TU573 visa since 2 September 2015.

15. The Department sent a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa on 16 February 2017 inviting the applicant to comment. No response was provided to the Department. The applicant submitted to the Tribunal at hearing that she did not send a response to the Department upon the advice of her agent, who she claims recommended that she only respond after the cancellation of her visa.

16. The applicant provided the Tribunal with a “Personal Statement of Purpose” via email and dated 14 December 2018 (folio 15).  In that statement, the applicant claims that she was unaware of the visa condition breach that required her to be enrolled in a Bachelor program. When questioned about this at hearing, the applicant explained that it was the first time that she had been away from home  and that these different circumstances contributed to her not being able to complete her English studies, explaining that she stayed home most of 2015.  She sought advice from a migration agent who assisted her enrolling in another course, and accepted that the Diploma course with another education provider, was sufficient to comply with the conditions of her visa. The applicant confirmed at hearing that she understood that the visa she was granted was for the purpose of studying a Bachelor degree or beyond and did not provide further evidence or arguments as to the reasons why the visa should not be cancelled. The Tribunal has considered the explanation provided by the applicant in regard to her seeking advice from the migration agent, subsequently enrolling in a course that did not comply with the relevant instrument under r.1.40A.  However the Tribunal has considered the applicant’s claim that she was aware of the conditions attached to her visa, namely, that the visa was granted for the purpose of studying a Bachelor degree or beyond and accordingly gives little weight to this consideration.   Based on the information before it, the Tribunal finds that the applicant has not been enrolled in a bachelor’s degree or master’s degree course of study since 2 September 2015, a non-compliance period of 18 months at the time of the delegate’s decision.

17. Based on the information above, the Tribunal finds that the applicant, while holding a subclass 573 student visa, did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that she breached condition 8516 attached to her student visa.

18. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

19. 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.

20. 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’.

21. The Tribunal has considered the applicant’s evidence provided at hearing along with the documentation she submitted to the hearing and the delegate’s decision record.

22. The information provided to the Tribunal at 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

23. The applicant is a Vietnamese national who travelled to Australia for the purpose of studying and enrolled in a registered course of study at LaTrobe University, initially studying Further Studies in English, which she did not complete, with the intention of studying a Diploma of Business and a Bachelor of Business. She submitted that she found it difficult adjusting to the country differences as it was the first time she had been away from home and that she found it hard to study. The applicant did not provide clarity on what she meant by this.  Whilst she was not clear on a timeline, self-correcting suggested dates at various stages through the hearing, she indicated that she discontinued her studies in English in early 2015, providing limited insight into her activities or how she spent the remainder of the year.

24. She explained to the Tribunal that she sought the advice of the agent when she decided that she wished to re-enrol, and that agent recommended a Diploma of Business Course that was provided by Dalton College. She claimed that she was not aware that this did not comply with the conditions attached to the TU-573 visa and that she enrolled in this course in 2016 having discontinued her previous studies some 12 months or more earlier.

25. The Tribunal questioned the applicant about the purpose of her study, providing an opportunity for her to explain its importance to her. The applicant did not articulate a particular interest in the Business qualification per se, and claims that she wants to study so that she can return home and be employed in “construction/trading”. She indicated that her parents were not aware of her visa circumstances and that they were keen for her to study.

26. On the basis of the applicant’s submission at hearing, there is no evidence before the Tribunal to indicate that the applicant has carefully considered her career choices and therefore what course of study she wishes to pursue towards that goal. Relevantly to this point, the applicant explained that her parents wished her to study and that they were unaware of the current status of her visa. The Tribunal finds that the applicant’s purpose was to study in Australia to assist her career objectives in her home country.

27. The Tribunal accepts that the applicant commenced her Further Studies in English on arrival in Australia, and that she travelled to Australia intending to study a higher education degree, but given her conduct of not being enrolled in a course as intended for a period of 18 months, the Tribunal gives this little weight in favour of not exercising the discretion to cancel the visa. The applicant claims to have advised the course provider that she was not continuing with the course, but there is no evidence before it to indicate that she advised the Department of the changes to her enrolment whilst she sought the advice of a migration agent. The Tribunal has considered these circumstances further and finds that these considerations outweigh any weight given in favour of not cancelling the applicant’s visa.

    The extent of compliance with visa conditions

28. 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 has regard to the 18 month period during which the applicant was not enrolled and the importance of the enrolment provision that is a condition to the purpose of the visa and finds that the significance of the breach outweighs the applicant’s compliance with other conditions.  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)

29. The applicant in her written explanatory statement to the Tribunal, dated 14 December 2018, explains that she would like to complete “at least one degree in Australia due to my future career. Without a certificate or degree, it would be hard for me to find a job in Vietnam when I head back there. There will not be any evidence to prove for my knowledge and English capacity. Thus, I really want to get back my student visa, complete a Diploma or Bachelor degree and then go back to Vietnam and look for jobs.”  The applicant was given the opportunity to explain what the consequences would be of a visa cancellation, and articulated her concern that her parents didn’t know about the visa circumstances, indicating their disappointment.

30. In the above explanation outlined, the applicant continues to reference interest in a Diploma or Bachelor degree course, not withstanding the fact that the condition attached to the TU-573 is that she be enrolled in a Bachelor or Master’s degree  and the Tribunal gives some weight to this aspect.

31. The applicant told the Tribunal that she has married an Australia citizen on 12 January 2017, stressing that this was before her visa cancellation. The Tribunal provided her the opportunity to comment on any hardship she may experience, and in particular, in relation to her husband, if the visa was cancelled.  Whilst given the opportunity to comment on more than one occasion during the hearing, the applicant was unable to provide any reasons for the Tribunal to consider other than the disappointment of her parents and her wish to complete a course so that she can work. She indicated that she continues to be financially supported by her parents and did not indicate that this would be affected.

32. The Tribunal has had regard to these personal circumstances as outlined above and appreciates that a cancellation may cause some hardship as the applicant has married, and a cancellation of her student visa may impact on her future migration status.

33. The Tribunal has considered the emotional and psychological hardship that may be potentially caused, having invited the applicant to comment, and has considered the applicant’s evidence that she would find it hard to get a job in Vietnam without an Australian qualification. The Tribunal has regard to the applicant’s evidence and the difficulty she could experience, and has considered the generality of the statement provided by the applicant who did not reference specific areas of employment that she was interested in and how they would be limited to holders of an Australian qualification. The Tribunal accepts that the applicant travelled to Australia to improve her employment prospects but given the extent of the breach of 18 months, the Tribunal gives more weight to the significance of the breach, the time that has elapsed since the applicant was enrolled, than the hardship potentially caused to the applicant.

    Circumstances in which ground of cancellation arose

34. The applicant submitted to the Tribunal at hearing the circumstances around the period when she stopped studying and when she did not enrol. She claims that she found it hard to study as it was the first time she had been away from home and found the country circumstances difficult. Whilst invited to explain what she meant, the applicant did not comment any further. She indicated that she continues to be financially supported by her parents and that she has not advised them of her changed visa circumstances, the visa cancellation and subsequent review of the delegate’s decision.

35. The applicant advised of her married status in response to a question from the Tribunal and provided no indication that the change to her marital status had any influence on the circumstances as outlined above. The applicant submitted that she sought advice from a migration agent who assisted in enrolling her in another course, accepting that the Diploma course with another education provider was sufficient to comply with the conditions of the visa. No further evidence was presented to indicate that the applicant sought any professional advice or counsel during this time, that she considered returning home or that she considered contacting the Department to canvass any options.

36. Given these circumstances, the Tribunal gives little weight to these reasons provided by the applicant. As such, the Tribunal finds that these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

    Past and present behaviour of the visa holder towards the department

37. Given the applicant has cooperated with the Department, the Tribunal gives some weight in favour of not exercising the discretion to cancel the visa.

    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

38. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which she can leave the country or apply for review of the decision.

    Whether there would be consequential cancellations under s.140

39. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

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

    Any other relevant matters

41. Whilst the Tribunal is not unsympathetic to the applicant’s wish to resume studies so that she can improve her employment prospects, there is no evidence before the Tribunal to indicate that the applicant sought assistance, counsel or guidance upon her arrival in Australia, to assist in her adjusting to the different circumstances she found in Australia. It is not unreasonable to presume that most students would need to undertake a period of adjustment when travelling overseas for study, and that should that adjustment be too difficult, that the necessary inquiries would be made to address the circumstances.  The Tribunal has considered the applicant’s endeavours to seek support from a migration agent, recognising the advice given by that agent breached a condition attached to the TU_573 visa, and that the course subsequently enrolled in was not a principal course as specified r.1.1.40A.  It is reasonable to expect a visa applicant to be familiar with the conditions attached to the visa held, and that attempts would be made to advise the Department of the changed circumstances.

1. Whilst the applicant claims that she wishes to resume studying to improve her employment prospects, she has not provided the Tribunal with compelling evidence to indicate the area of study she wishes to pursue or indeed what Colleges or Universities she has considered for future enrolment.

2. The Tribunal has considered all the evidence before it including the evidence provided by the applicant at hearing, however the breach is significant. As a visa holder bound by the conditions on the visa, the Tribunal finds that whilst she sought the advice of a migration agent,  she made no attempt to inform the Department of the changed circumstances.  The fact that she found it particularly difficult to adjust to the different circumstances and lifestyle she found on arriving in Australia does not explain why she has only completed part of an English course since her arrival in Australia in 2014.

3. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the breach in excess of 12 months is significant in the context of a student’s study period and the fact that she would be well aware of the condition associated with the TU-573 visa, along with the fact that she made no attempt to either seek a deferral and attempt to go home, nor did she make any attempt to contact the Department.

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

   DECISION

5. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Helen Kroger
   Member