Ho (Migration)

[2024] AATA 508

Ho (Migration) [2024] AATA 508 (14 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ngoc Long Ho

REPRESENTATIVE:  Mr Pablo Ramirez

CASE NUMBER:  2207670

HOME AFFAIRS REFERENCE(S):          BCC2019/6410859

MEMBER:Michael Bradford

DATE:14 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 14 February 2024 at 1:51pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant had not been enrolled for a total period of 2 years – impact of COVID on his mother’s business – applicant had financial problems in funding his education – breached condition 8202 – an extensive period of non-enrolment – applicant deliberately provided in his VA misleading information to the Department – decision under review affirmed  

LEGISLATION
Migration Act 1958, s 116

Migration Regulations 1994 (Cth), cl 500.214, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Introduction

1. This is an application to review a decision of a delegate of the Minister for Home Affairs who, on 18 May 2022, cancelled the applicant’s Subclass 500 Student (Temporary) (Class TU) (Higher Education sector) visa under Sec 116 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 January 2019 to study a package of Engineering Technology courses at the Melbourne Polytechnic (the ET package). The visa was granted on 28 January 2019 and was subject to, among other conditions, condition 82O2 (the enrolment condition).

3. The delegate cancelled the visa under Sec 116(1)(b) of the Act on the basis that the applicant had not complied with the enrolment condition because he had not been enrolled in those or any other registered courses of study during the periods from 13 May 2019 to 24 January 2020, 13 March 2020 to 4 August 2020 and from 7 April 2021 to the date of cancellation (the relevant periods).

   Background, the process which led to the cancellation.

4. I have seen a paper file from the Department of Home Affairs which contains the Visa Application (the VA), a PRISMS record, the NOICC dated 8 April 2022, the applicant’s response to the NOICC dated 26 April 2022, some academic records including COEs for the ET package and for another package of Information Technology courses at the same provider, a Student Payment Schedule from Melbourne Polytechnic, various Statements relating to the applicant’s account at the Commonwealth Bank (the Bank Statements), his mother’s (untranslated) account with VIB, a Casual (Award) Employment Contract entered into between the applicant and South Pacific Laundry dated 22 February 2019, and the decision under review.

5. In his response to the NOICC, the applicant explicitly accepted that he had been in breach of the enrolment condition in that he had not been enrolled in any registered courses of study since 7 April 2021 and that a ground for cancellation of his visa therefore existed. He also implicitly (if not explicitly) accepted that he was not enrolled during the earlier periods in 2019 and 2020 but he sought to explain them in various ways. His response was thus confined to the issue of whether his visa should be cancelled.

6. In her decision, after reciting the information in the PRISMS record and referring to the reasons which the applicant had given in his response for not cancelling his visa, reasons which stemmed mainly from his contention that his mother had only intended to pay for his tuition in the early stages and that he could not afford to meet his fees after the first term of 2019 because he had to work to pay for them, and in the later years because of the pandemic, the delegate attributed significant adverse weight to the fact that, in preferring to work rather than study, the applicant had demonstrated that his purpose in remaining in Australia was no longer in line with the purpose for which his visa had been granted, which of course was to study.

7. Significant adverse weight was also attributed to the fact that, as he had not been enrolled for a total period of 2 years, there was in this case an extensive period of non-compliance.

8. Further, she could not see any significant hardship, either to the applicant or to any of his family, particularly his mother, arising from the cancellation in circumstances where the applicant had not been enrolled since April 2021 and could pursue his studies in his home country of Vietnam.

9. The delegate did not, in view of the applicant’s languid academic history, accept his contention that, if given the opportunity, he would expedite his studies so that he could return to Vietnam to look after his widowed mother, his father having passed away in 2013. These factors were also given some weight in favour of cancellation.

10. As to the circumstances in which the ground for cancellation arose, whilst the delegate appears to have accepted that the applicant had financial problems in funding his education here after Term 1 in 2019, she pointed out that in the VA he had declared that, as his mother would be supporting him throughout his stay in Australia, he had access to sufficient funds and that this information would have been relied on by the visa delegate when assessing whether the applicant met the requirements under clause 500.214 of the Migration Regulations 1994.

11. The delegate said that if his financial situation had in fact deteriorated after arriving here, he could have deferred his studies and returned to Vietnam until such time as it improved or apply for a new visa in line with his changed circumstances. The fact that his education agent may not have advised him of these options was not an answer given that it was his responsibility to approach his education provider to explore available options.   

12. The delegate also did not accept his contention that his second period of non-enrolment (13 March 2020 to 4 August 2020) had arisen because of circumstances beyond his control, namely that he found the Diploma of Engineering Technology too difficult, because he should have researched the content before deciding to enrol in it.    

13. The delegate was thus not satisfied that the ground for cancellation arose due to circumstances beyond the applicant’s control. This was given significant adverse weight.

14. As to the applicant’s behaviour towards the Department, the delegate had concerns arising from the fact that the applicant may have mislead the visa delegate into thinking that he had sufficient funding for his entire stay here and that, if the visa delegate had been made aware of the correct position regarding his mother’s intention, this may have affected his assessment of whether clause 500.214 had been met. This too was given some adverse weight.

15. The other usual factors, including those arising under Secs 140, 189 and 198 of the Act, were considered in her decision but these were given relatively little weight either for or against cancellation.

16. The delegate was therefore satisfied that the visa should be cancelled.

    Procedural and documentary aspects in the review

17. The Review Application (RA) was filed on 25 May 2022 and is within time.

18. The applicant has engaged with the review process by providing to the Tribunal in a timely manner a documentary case, by duly accepting the invitation to attend the video hearing on 24 May 2023, and by participating at that hearing to give oral evidence and present his case.

19. The documentary case mainly consists of a Statutory Declaration from the applicant sworn on 15 May 2023; a Statement relating to the applicant’s Commonwealth Bank account for April 2023; a Statement relating to his mother’s VIB Bank account for the period from 26 April 2020 to 26 April 2022; and a Submission from his legal representative, Mr Pablo Ramirez, dated 10 May 2023.

20. Prior to the hearing I was also provided with a PRISMS and Movements Details records for the applicant. None of the information in these records was controversial.

    The hearing, approaching the documentary evidence.  

21. The hearing occupied about 90 minutes. His oral evidence was given in response to questions from me which were translated by a Vietnamese interpreter. The applicant was assisted by Mr Ramirez.

22. Broadly speaking, but with some notable exceptions, he maintained in the review the basic position he adopted in his response to the NOICC. There was thus no issue in the review that he had not been enrolled in a registered course of study during the relevant periods. His review case is that, although there were grounds on which his visa could be cancelled, it should not be cancelled because his non-enrolments came about due to circumstances beyond his control, namely the asserted issues he was having with English in Term 1 of 2019, which (he says) was a factor which led to the initial cancellation of his enrolments in the ET package in May of that year, and the impact of COVID on his mother’s business in Vietnam as from early 2020, and on his capacity to meet his tuition fees for the courses from his own earnings, which (he says) led to the cancellation of his enrolments in March of that year and in April 2021.

23. Although much of his evidentiary case concerning his academic history is uncontroversial, I am unable to accept his self-serving assertions on the critical factual issue regarding his financial capacity to meet his tuition fees and other reasons which he has given for his inability to productively engage with his studies as from early March 2019 when he completed the ELICOS course. More particularly, I do not consider that his asserted difficulties with English had anything to do with the May 2019 cancellation of his enrolment in the Diploma of Engineering Technology, nor am I satisfied on the limited documentary evidence led that COVID impacted on him and his mother in such a way, and to such an extent, as to compromise his ability to meet his tuition fees in the Diploma of Information Technology at the Melbourne Polytechnic as from 4 August 2020. Indeed, on his own documentary case, he paid that provider the sum of $6,847 on or about that date for his tuition in in the IT package, money which seems to have come from his earnings, but made very little progress in this course before his enrolment was cancelled on 7 April 2021 when he notified the provider that he was ceasing studies.

24. Nor do I accept the evidence in his Statutory Declaration to the effect that he is now willing to engage with his studies and complete them. He has given in that document an internally inconsistent account of what studies he now wishes to undertake and there is nothing in his oral evidence which throws any further light on his real intentions.

25. In addressing the evidence which the applicant has led in relation to these issues, I remind myself that it is not the Tribunal’s function to conduct a roving enquiry to find out whether the applicant has other evidence by which to establish a case on these issues. Ultimately, it is for him to make out his case on the evidence he has provided, documentary and oral. In a case, such as this one, where an applicant asserts that his non-enrolments have come about because of circumstances beyond his control, he must lead sufficiently cogent evidence on which to establish the primary facts which underpin them.

26. If the applicant asserts, as he does, that he and/or his mother could not afford to pay his tuition fees for relatively inexpensive vocational course or courses such as these Diplomas, and that this led to the cancellation of his enrolments in those and other courses which comprised the packages, and which prevented him from re-enrolling in them during the relevant periods, the Tribunal expects him to provide a reasonably comprehensive case to establish these things.

27. In this case, the applicant has fallen well short of doing this. Vague, imprecise, or incomplete evidence, including documentary evidence in the form of Bank Statements which relate only to one of his accounts, does not go anywhere near to making out claims of financial inability to meet tuition fees.

28. More particularly, evidencing the applicant’s earnings by providing Bank Statements which relate to an account he conducted during the period from 21 February 2019 to 30 December 2021, a period of almost 3 years, without providing credible evidence of his outgoings during that period, or any part of it, does not establish that financial constraints were in play here, let alone does it prove that these constraints led to breaches of the enrolment condition. Bank Statements such as these which relate only to one account which the applicant operated during the relevant periods do not provide, in circumstances where he appears to have operated at least one other account, a complete picture of his income and expense position, let alone his financial capacity to meet expenses such as tuition fees.

29. Providing an untranslated Bank Statement relating to an account operated by his mother during 2020 who resides in a country such as Vietnam and who does not give any other evidence in support of his case takes him almost no-where, at least in the absence of any evidence from the applicant to explain the significance of the relevant transactions in his mother’s account.

30. All of this is just a matter of common sense. In any event, even if I were to accept that he could not afford to study, the applicant had options to defer his enrolments by arrangement with the provider or take other steps to regularise his enrolment position with the Department by returning to Vietnam, if necessary, until such time as he could afford to pay for his education. If explaining his situation to the Department had associated risks because he had provided misleading information in the VA regarding his mother’s ability to support him, he has only himself to blame.

31. Parts of his evidence appear to me to have been tailored or fabricated, while other parts have been recently invented. A good deal of it is internally inconsistent. There is also a clear disconnect between the evidence and some of his agent’s submissions.

32. In addition to those concerns, as I will later find, the applicant has lied to the Department in his VA regarding the financial support he was expecting to receive from his mother.

33. Ultimately, for those and other reasons, I am not prepared to act on the applicant’s self-serving assertions in this case unless they are consistent with the objective features, are reinforced by other more reliable documentary evidence, are inherently plausible or amount to an admission against his interests. 

    Other evidence and findings

34. In his Statutory Declaration, the applicant states that after leaving high school in Vietnam he studied English for 2 years before arriving here (on a TU-500 visa) in February 2019 to study an ELICOS course and a package of courses at Melbourne Polytechnic leading to a Bachelor of Civil Engineering, courses which had a combined duration of some 4.5 years. PRISMS confirms as much.

35. In the VA he told the visa delegate that he studied English at the Saigon University and completed a Bachelor of English Linguistics at that University as from September 2016, evidence which I accept as an admission against interest. He also told them in the section of the form which deals with “Funding for Stay” that his mother will support him in circumstances where, according to his NOICC response, she never intended to meet his tuition fees beyond Term1 in 2019, a fact which explains why he had to work virtually from the time of his arrival.

36. He goes on to say in his Statutory Declaration that he completed the ELICOS course in March 2019 and began studies in the “engineering course”, a course which initially consisted of a Diploma of Engineering Technology. According to the COE, generated on 21 March 2019, the course had an initial pre-paid tuition fee of $3,925, a fee which his mother paid to enrol him prior to lodging the VA, and a total fee of $15,700.

37. The applicant in effect states that he never seriously studied this course because he had difficulties understanding English. Whilst I accept that he never applied himself to study this course I do not accept his explanation for it. He makes no mention of these asserted difficulties in his NOICC response and his prior education in the English language, both here and in Vietnam, suggests to me that he is unlikely to have had them, at least to the extent he asserts, at the Diploma level. If he had these issues, he did not pause to explain why he would re-enrol in the same ET package at the same provider in early 2020.

38. His other evidence on this topic is that he began working in the laundry for South Pacific on a casual basis very shortly after he arrived here, found other casual work in a cafe not long afterwards and accepted in his NOICC response that he simply could not cope with both work and study. This other explanation is clearly more consistent with the objective features, and I prefer it.

39. To make matters worse, he also accepts in his Statutory Declaration (para. 8) that, despite receiving a warning letter from the provider in May 2019, and a follow up telephone call, he did not respond to their concerns.

40. PRISMS indicates, and the applicant accepts, that his enrolment in the Diploma was cancelled for non-commencement on 13 May 2019. This being so, he incurred no liability for tuition fees during the remainder of that year.

41. The Bank Statements relating to the applicant’s nominated account (8151) for the period from February to June 2019 reveal that he was initially paid about $1,000 per fortnight for his work in the laundry and that, on 14 April 2019, the sum of $4,100 was transferred to his account by his brother, Ngoc Ho, a transfer which the applicant did not address let alone explain in his documentary case. By the end of the 2019 financial year, the applicant had a steadily increasing credit balance of $8,482 in this account, a sum which would presumably have been sufficient to cover his tuition fees for Term 2 of 2019, had he still been enrolled in this course. 

42. In his Statutory Declaration the applicant says, and his academic records confirm, as does PRISMS, that he re-enrolled in the ET package in January 2020, attended some classes in February of that year but ceased to do so shortly afterwards. These enrolments were also cancelled by the provider on 13 March 2020 for non-commencement even though the applicant had pre-paid total tuition fees for them of $6,700 on 25 January 2020, these being $4,125 for the Diploma and $2,575 for the bachelor’s course. The money to pay these fees came from his account (8151) after transfers of funds from other accounts, not otherwise in evidence, were processed. 

43. The only plausible explanation for these cancellations in March 2020 is that the applicant had other priorities, namely his work. He accepts that the school started online study, but he did not seriously engage with it, and this even though these were his second enrolments in the same package at the same provider within about 7 months of his first enrolments having been cancelled for failing to commence studies.

44. I do not accept the explanation put forward in his NOICC response that he could not cope with the ET package because it was “too technical” and was in a field in which he had no interest. This evidence is impossible to reconcile with the evidence in his Statutory Declaration (paragraph 18) that he still wants to study engineering. It is also hard to reconcile with the fact that he enrolled in this package not once but twice.    

45. His next enrolments were in the Information Technology package at the same provider on 4 August 2020. The COEs for these courses, namely a Diploma of IT and a Bachelor of IT, indicate that total pre-paid tuition fees were $6,487.50, $3,925 for the Diploma and $2,563 for the bachelor’s course. Again, the money to pay these up-front fees came from his account (8151) after income tax refunds and other transfers were processed.

1. According to the Interim Transcript for the Diploma of IT, he passed 3 subjects in this course during 2020, but was not assessed as competent in 13 others during that year and in Term 1 of 2021, before his enrolments in the IT package were cancelled on 7 April 2021 when he notified the provider that he was ceasing studies in the Diploma. PRISMS confirms as much as did the applicant in his oral evidence.

2. I do not accept that financial constraints were a factor in the cancellation of his enrolments in the IT package. It may be that his work hours in the laundry and/or the café were reduced because of COVID during the second half of 2020, and that he was earning less money because of the pandemic during that period. Bank Statement no. 4 suggests as much. That said, these enrolments were not cancelled because he could not pay his tuition fees for Term 1 of 2021. Bank Statement no. 5 reveals that he paid the provider a further $1,425 on 16 January 2021 for the January 2021 tuition fee and that his earnings from his work in the laundry resumed pre-COVID levels as from about that time.

3. Although he denies this in his Statutory Declaration, suggesting (para.14) that he only worked a couple of hours a week from the end of 2020, the Bank Statements provide no support for his denial.

4. The documentary evidence reveals that, by April 2021, he had likely resolved not to continue with the Diploma and had notified the provider that he was not going ahead with it. PRISMS confirms as much as did the applicant in his oral evidence.

5. In these circumstances, the most plausible explanation for him ceasing studies in the Diploma of IT was not because he could no longer afford his tuition fees but because he was not making any real progress in this course. Again, I infer that the reason for this was most probably related to his ongoing work activities. Apparently, he was still finding it difficult to work and study.

6. In his oral evidence he told me, and this seems to be confirmed in the Schedule to his Employment Contract, that he was being paid at the award rate of about $24 per hour which means that, if he was earning on average $500 per week after tax, he was working in excess of 22.7 hours, or not less than 3 days per week, a routine which would have made it very difficult, if not impossible, for him to productively study for the Diploma.

7. It is obvious from the Bank Statements that the applicant was operating another account with the same bank during the relevant years identified in these records as “2244”. Even though there are significant transfers of money between these two accounts from time to time, including one on 12 January 2022 for $10,000 and another on 27 April 2022 for $20,000, no Statements relating to this other account have been provided.

8. The VIB Statement mentioned earlier simply confirms that the applicant’s mother conducted an account with a bank in Vietnam during the second half of 2020, that a sum roughly equivalent to $7,000 AUD was deposited into that account on 29 June 2020 and was transferred the next day, 30 June 2020, to an account conducted by the applicant’s brother, Ngoc Ho, in Melbourne. In his Statutory Declaration (para 13) the applicant says that his brother was at that time studying a Master of Engineering and he agreed that she would send money to him because the applicant had two jobs and he had one.

9. There is nothing in the Bank Statements to indicate that the applicant’s mother sent money to the applicant at any stage, but he seems to accept (Statutory Declaration, para.12) that she had been sending some support money to him before and after the pandemic. If this in fact took place, and I tend to think that it probably did, the money was either transferred to the applicant’s other bank account or it was sent to his brother for distribution purposes, a fact which might explain the transfer of $4,100 into the applicant’s 8151 account by his brother on 14 April 2019.

10. In any event, although COVID likely impacted his mother’s business in Vietnam, whatever that consisted of, it is something of a red herring in circumstances where the applicant well knew before he came out here that she was not intending to, and did not in fact, pay the applicant’s tuition fees after Term 1 of 2019. There is a clear admission to this effect in his NOICC response, evidence which I accept, even though it is not what he had told the Department in the VA.

11. On any view of the evidence, the applicant has, on his own evidence, engaged in a deliberate deception in the VA by informing the Department that his mother would be supporting him during his stay, the duration of which, on his own case, was then expected to be about 4.5 years.

12. Even though the delegate had expressed concerns about this aspect in her decision, the applicant’s Submissions not only completely overlook them but include one (para. 40) to the effect that he has always been truthful in his dealings with the Department. To make matters worse, the submission goes on to set out a passage in the delegate’s decision which is said to support that proposition but what the delegate is doing in that passage is simply reciting what the applicant’s case is on this aspect, she is not in this passage expressing any views about it. These were set out later in her reasons and none of them on this aspect can be said to have been supportive of the applicant.   

13. It is an admitted fact in this case that, apart from his earlier periods of non-enrolment, the applicant has not been enrolled in a registered course of study since April 2021, now almost 3 years ago. As the Movements record indicates that his Bridging visa, granted to him on 2 June 2022, has a study prohibition on it, the most recent breach of the enrolment condition came to an end in early June 2022 and had a duration of about 14 months.

14. In his Statutory Declaration (para. 23) the applicant says that after his enrolments in the IT package were cancelled in April 2021, he worked to save money for his future study and at least implicitly asserts that he is now in a financial position to continue with his studies. He has led no documentary evidence to support the contention that he presently has the necessary funds to resume his studies, even at the vocational level and, indeed, what evidence there is suggests the contrary.

15. The Bank Statement for the period from 30 December 2021 to 27 April 2022 contains no deposits for earnings of any significance after 25 January 2022, while the April 2023 Bank Statement contains no relevant details apart from the transfer of $5,000 to his other account on 27 April 2023.

16. The Statutory Declaration contains no evidence that he is still employed as a laundry worker, or that he has any other form of gainful employment and his Bridging visa contains a work prohibition.

17. Although he had more than $20,000 standing in his account at the end of April 2022 the vast bulk of that came from his other account. He has provided only equivocal and somewhat open-ended evidence in his Statutory Declaration about what courses he would study if given the opportunity (paras.18 and 24).

18. Clearly, in these circumstances, I can make no findings on his present capacity to meet tuition fees in the future, nor in any event am I satisfied on the evidence led, such as it is, that he genuinely wants to resume his studies in the IT or Engineering fields for legitimate career related reasons.

19. On any view his academic record is very unsatisfactory, to put it mildly. He has been here since early 2019 and, apart from completing the ELICOS course, has made no real progress in the various Higher Education packages in which he has been enrolled albeit for short periods of time. His stay here has achieved almost nothing in the way of education but much in the way of wasted resources.

20. Moreover, he has failed to satisfactorily explain his languid performance beyond saying that his work activities got in the way. I accept that they most probably did but he was not granted the visa to work. It is true, as has been submitted, that he had limited work rights, but he also had the responsibility to manage them in such a way that they did not interfere with his studies and, more particularly, the need for him to comply with the enrolment condition. If he could not do that, he should have taken steps to defer his studies or regularise his immigration position. He did neither.

21. His predicament is his own doing, it was not the result of a reasonable mistake, let alone an honest one, nor can it be explained away on the basis that he got bad advice from his education agent. On his own evidence, he re-enrolled in these packages because he was aware of the need to maintain enrolment. He does not claim to have been an inexperienced student and does not suggest that he had any adjustment issues in the early stages of his program here.

    Summary and conclusion

22. There is nothing in the evidence led in this review to warrant any significant departure from the way in which the delegate looked at the case. Her decision contains comprehensive reasons to justify the cancellation of this visa. Subject to one qualification, I broadly agree with them and with the relative weight which she attributed to the various factors under consideration.

23. Unlike the delegate, I would attribute more weight to the fact that the applicant deliberately provided in his VA misleading information to the Department regarding his expected financial support from his mother. In circumstances where provision of truthful information on this aspect could well have altered the outcome of the VA, I regard this to be a significant adverse factor. The applicant procured the subject visa by unlawful means and likely obtained an immigration benefit to which he was not entitled.    

24. As to the other circumstances, the applicant has fallen well short of satisfying me that he could not meet his tuition fees after Term 1 of 2019.

25. On my finding, he probably had funds with which to pay the fees for Term 2 of that year but chose not to do so. This is, in my view, a telling circumstance which in no small way undermines much of his review case. His other explanations are either implausible or find no support in the objective features.

26. This is a case which involves an extensive and largely unexplained breach of a fundamental condition in a student visa.

27. Attributing appropriate weight to the relevant factors, I too would conclude that the reasons to cancel the applicant’s visa clearly outweigh the reasons not to cancel it.

28. Consequently, the outcome should be an affirmation of the delegate’s decision.

    DECISION

29. The Tribunal affirms the decision under review.

    Michael Bradford
    Member