HOANG (Migration)

HOANG (Migration) [2019] AATA 4312 (23 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms THI UYEN UYEN HOANG
CASE NUMBER:  1712517
HOME AFFAIRS REFERENCE(S):           BCC2017/997965
MEMBER:Mark Bishop
DATE:23 September 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 23 September 2019 at 4:45pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – failed to maintain enrolment – mental health – divorce of parents – migration agency closed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), cls 573.223(1A), 573.231, Condition 8516

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 12 June 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).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not been enrolled in a Bachelor degree or other relevant degree from 11 April 2016. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 23 September 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 was represented in relation to the review by her registered migration agent.
The applicant provided a copy of the decision record to the Tribunal.
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
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
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 attached to the applicant’s visa. This condition provides that a visa holder must continue to be a person who would satisfy the primary or secondary criteria as the case required for the grant of a visa.
In the present case, the applicant was not enrolled in a Bachelor or Master level course and consequently the applicant’s visa was cancelled on the basis the applicant did not comply with condition 8516 attached to her visa.
The applicant was notified of the intention to consider cancellation (NOICC) by email and the notice invited the applicant to respond in writing. The applicant did respond in writing. The applicant provided reasons why the visa should not be cancelled. He outlined reasons for the exercise of the discretion in his favour. The applicant outlined the following reasons:
·She was studying at Pax Institute of Education Pty Ltd;
·She arrived in Australia on a Student visa and she first studied an English course at Deakin College for one year;
·She advised that she has been studying at various education providers since she arrived in Australia and requested her agent at the time to inform the Department when she lost her bag which contained her passport and school records;
·The applicant advised her parents and her father 's financial position was difficult;
·She had been trying to work within the 20. hours to pay for her school fees and daily life;
·Her agent suddenly closed without notice and she lost all of the money she had paid to them;
·Her education had been disrupted for a short period due to her previous migration agent;
·The applicant stated that if her visa had been cancelled she would have been in very distressed circumstances; ·
·The applicant had not done anything wrong and has complied with all the guidelines of the Department;
·The visa holder wishes the Department to consider her case and give her the opportunity to continue her studies for her future.
Does the ground for cancellation exist?
Immediately prior to the hearing the applicant provided copies of her parents’ divorce papers dated 24 August 2016. The Tribunal asked the applicant to explain the relevance of the documents. The applicant advised the documents were provided to the Tribunal as evidence of her parent’s divorce.
On 11 April 2016 the applicant was granted a TU-573 Student visa. Condition 8516 attached to the visa. Relevantly. This condition provides that a visa holder must continue to be a person who would satisfy the primary or secondary criteria as the case required for the grant of a visa.
The delegate made a finding the applicant did not commence her studies in a Bachelor of Commerce and her COE in this course was cancelled by the education provider on 11 April 2016.
The delegate made a finding that according to the Provider Registration and International Student Management Systems (PRISMS) the applicant had not been enrolled in a bachelor's degree or master's degree course after 11 April 2016. Therefore the applicant did not continue to be a person who would satisfy either subclause 573.231 or 573.223(1 A). As such the delegate made a finding that the applicant did not continue to be a person who would satisfy the primary criteria for the grant of the visa and had not complied with condition 8516.
In evidence to the Tribunal the applicant confirmed she had not been enrolled in a Bachelor course of study from 11 April 2016 until May 2017. The applicant advised she spoke to her migration agent at that time because she wanted to study Commercial Cookery. The applicant advised she did not enrol in a Bachelor course in this period of time. The applicant further advised she could not study in Australia after May 2017 as her then enrolments in the VET sector were cancelled by her education provider because her Bridging visa E did not grant study rights. The Tribunal accepts this advice.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course at the required level as set out in paragraph 12 above. Accordingly, the applicant has not complied with condition 8516.
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 to exercise its discretion to cancel the visa.
Consideration of discretion
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’.
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
The visa holder was granted a Student Visa for Australia and as such the Tribunal is of view that the visa holder travelled to Australia to undertake a course of study to further her education and receive a qualification.
In evidence to the Tribunal the applicant advised she came to Australia to study. Her parents wanted her to study in Australia and gain skills in a developed country. Study was the only reason she came to Australia.
There is no evidence before the Tribunal to suggest that the visa holder's original intention for her travel to and stay in Australia was not for the purpose of study.
Student visa holders are expected to study at the level the visa class is approved at. If the visa holder is unable to study at the visa subclass visa she was approved for, at the time of application, visa holders are required to change subclasses to reflect the level of study she is completing. The applicant advised the Tribunal she did not contact the Department and seek advice as to changing her visa class. There is no evidence before the Tribunal to suggest this was done when her education provider cancelled her enrolment in the principal course and she has only enrolled in and studied English Language Intensive Course for Overseas Students (EL/COS) and Vocational Education and Training Sector (VET) courses.
The applicant advised the Tribunal as to her progress in study in the VET sector. The applicant advised she did not continue with her studies in Commercial Cookery after a period because her visa was cancelled in May 2017. She did not complete any courses of study in the VET sector due to her first school closing and her second school cancelling her enrolment because her visa was cancelled. Her enrolment was cancelled by the education provider after May 2017. The applicant advised the Tribunal she remained as a resident in Australia as the holder of a Bridging visa E that did not have study rights. The applicant has not been enrolled in a registered course of study from May 2017 until the present time. The Tribunal does not make any adverse findings against the applicant as to her non-enrolment in courses of study post May 20917 as this non-enrolment is a direct consequence of the applicant’s Bridging visa E not containing study rights.
The applicant advised the Tribunal she was not currently enrolled in any courses of study. The Tribunal inquired of any compelling need to remain in Australia to study. The applicant advised she wished to resume her studies so she could assist in the development of her parents business. In evidence to the Tribunal the applicant advised her father was a professional man who worked in the electricity industry in Vietnam. Her mother ran a small business. Her parents have remitted to the applicant approximately $30,000 AUD on an annual basis to cover her costs in Australia.
The Tribunal accepts that the applicant was unable to engage in study in Australia after May 2017 as her Bridging visa E did not give study rights. The Tribunal has given some weight to this consideration in the applicant’s favour.
The extent of compliance with visa conditions
The applicant did not comply with condition 8516 of her student visa when she failed to maintain her enrolment in a course of study that is a principal course of a type specified for the TU573 Higher Education Sector visa by the Minister.
The applicant was granted a TU-573 Student Visa. The applicant did not enrol in any other Bachelor level course in the Higher Education (HE) sector after her enrolment in a Bachelor of Commerce was cancelled by the education provider on 11 April 2016. Student Visas are approved for various subclasses of visas. Student visa holders are expected to study at the level the visa class is approved at. If the applicant was unable to study at the visa subclass visa she was approved for, at the time of application, visa holders are required to change subclasses to reflect the level of study she is completing. The applicant advised the Tribunal she did not contact the Department and seek advice as to changing her visa class. There is no evidence before the Tribunal to suggest this was done when her education provider cancelled her enrolment in the principal course and she has only enrolled in and studied English Language Intensive Course for Overseas Students (EL/COS) and Vocational Education and Training Sector (VET) courses.
Therefore the Tribunal applies no weight to this consideration in the applicant’s favour.
Degree of hardship that may be caused (financial, psychological, emotional or other -hardship)
The delegate stated that in her response to the NOICC the applicant advised she would have been in distressed circumstances if her visa was cancelled.
The Tribunal asked the applicant to outline any hardship she might face if her visa was cancelled. The applicant advised it would be a disappointment for her not to be able to study in Australia any longer. Her parents expected her to get a Certificate from Australia.
The applicant advised the Tribunal she had been unable to study in Australia since May 2017 because her Bridging visa E did not contain study rights. The Tribunal accepts this advice.
If the applicant had to depart Australia, the Tribunal notes that she may be returning to her home country, not to a third country with which she is not familiar with and with which she has no ties. While the Tribunal acknowledges that this will be a stressful event to go through, the circumstance of having to return to her home country after a number of years spent in Australia on a temporary visa is not a unique or exceptional one.
The applicant advised the Tribunal she had not been working in Australia and further advised the Tribunal her parents remitted her living costs of approximately $30,000 annually to her in Australia. The applicant advised the Tribunal she did not work and remained at home and did nothing every day. The cancellation of the visa would result in some financial hardship as the visa holder would have no work rights and therefore no legal ability to work in Australia and gain an income.
The applicant provided a copy of a letter to the Tribunal from Charles Street Clinic. The letter was dated 19 September 2019 and outlined the following:
·The applicant attended for counselling on 19 September 2019;
·The applicant advised she first arrived in Australia in 2013 for the purpose of study;
·She lived with her aunty and difficulties ensued as her aunty wished her to marry and the applicant considered herself to young. The applicant left her auntie’s residence and has not been in contact since that time;
·The applicant advised her parents’ marriage was in difficulty. She alleged there were issues of domestic violence between the parties to the marriage. The applicant felt helpless and hopeless being distant from her parents. She lost 10 kg of weight. She struggled to maintain her emotions. She did not go to school during this time;
·She sought the reinstatement of her student visa;
·She is finally ready to seek counselling. She presented with symptoms of anxiety and depression “during that period”.
The applicant did not advise the Tribunal she sought counselling assistance at any time during the period of her parents’ divorce. She did not provide any evidence of undertaking counselling at the time of her parents’ divorce. There is no evidence before the Tribunal that Charles Street Clinic or any like firm or individual provided counselling services to the applicant at the time of her parents’ divorce. The Tribunal is unable to place much weight on this letter of 19 September 2019 from Charles Street Clinic to the extent that it provides a diagnosis relating to a period when the applicant has not advised she was seeking counselling assistance.
However the Tribunal is prepared to accept the letter may refers to more contemporaneous times and the letter in saying “Ms Hoang presented with symptoms of anxiety and depression during that period” is referring to the current period. The Tribunal considers the letter in this context.
The letter from Charles Street Clinic does not make reference to any past counselling sessions. It does not provide a prognosis for the future. It does not outline a recommended course of action for the applicant. It does not identify or draw conclusions as to the causes of anxiety and depression. It does not state the applicant was unfit or should not have engaged in study in the critical period March 2016 until May 2017. The applicant has not provided any contemporaneous evidence of counselling or seeking psychiatric or psychological or other medical or professional assistance at the time of her parent’s divorce. The applicant did not explain why she did not seek to return to her home country and provide assistance to her family in this difficult time as was her right as she was resident in Australia as the holder of a student visa that at that time gave her travel rights.
The Tribunal accepts there may well have been stress to the applicant caused by the occasion of her parents’ divorce in apparently acrimonious circumstances. The Tribunal gives this circumstance some weight in favour of the applicant.
Circumstances in which ground of cancellation arose
The circumstances in which the ground for cancellation arose occurred when the applicant failed to maintain her enrolment in a Higher Education Sector level principal course of study failing to meet subclauses 573.231 or 573 .223(1 A) since 11 April 2016 which led to her noncompliance with visa condition 8516.
In her written response to the NOICC the applicant provided reasons as to the circumstances in which the grounds of cancellation arose. They are summarised at paragraph 10 above.
The applicant claimed that her father was suffering from a difficult financial position and that she had been trying to stay within the 20 hours of work to pay for her school fees and living expenses. It is reasonable to expect that an applicant who is affected by financial difficulties would depart Australia temporarily until the financial situation improves rather than remain in Australia in continued non-compliance with a visa condition. The applicant could then have returned to resume her studies at a later date when her financial situation had improved.
In addition, the applicant claimed that her previous agent closed without notice and that she had lost all of the money that she had paid to them and this had disrupted her education.
The applicant has not provided any evidence to substantiate this claim. Given the lack of evidence the Tribunal does not accept that the circumstances that led to her having no enrolment in a Higher Education Sector level principal course of study and becoming non-compliant with a condition attached to the visa, and therefore the grounds for cancellation arising were due to circumstances that were entirely beyond her control.
The Tribunal has applied minimal weight to this consideration in the visa holder's favour.
Past and present behaviour of the visa holder towards the department
There is no evidence that the applicant has been uncooperative with the Department or the Tribunal. However this is expected of all applicants and therefore the Tribunal gives this consideration little weight in the applicant’s favour.
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
If the visa were to be cancelled the applicant would become an unlawful non-citizen and could be liable for detention under s189 and removal under s198 of the Migration Act 1958 if she does not voluntarily depart.
In addition, section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia, so she would· need to depart Australia and apply from overseas for most types of further visa applications .
If the Tribunal decides to cancel the visa under these grounds the applicant will not incur a penalty that prevents her from making application for or be granted a new visa from overseas. Therefore, if she has another purpose for wishing to return to Australia later on she can apply for a relevant visa to do so without the cancellation of her Student visa preventing his ability to do so.

The Tribunal has given this consideration minimal weight in the applicant’s favour.
Whether there would be consequential cancellations under s.140
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
There is nothing before the Tribunal to indicate there are international obligations to consider.
Any other relevant matters
The Tribunal inquired of the applicant and her MA if she wished to address any further relevant matters. The applicant advised she had a lot of problems in Australia because of family problems in Vietnam. The applicant advised she remained in Australia so she could await the outcome of her review application before the AAT. The MA agreed the applicant was in breach of a condition attached to her visa. The MA advised her parent’s divorce affected her ability to study. The Tribunal is not aware of any other relevant matters.
The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-573 visa and that a breach of almost twelve months is significant in the context of a student’s study period.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Mark Bishop
Member

[2019] AATA 4312

23 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction