Huynh (Migration)

[2019] AATA 6405

Huynh (Migration) [2019] AATA 6405 (6 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Phuong Dung Huynh

CASE NUMBER:  1730431

HOME AFFAIRS REFERENCE(S):           BCC2017/3017150

MEMBER:Damian Creedon

DATE:6 November 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 06 November 2019 at 5:07pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education – not enrolled in registered course  – family illness – academic performance adversely affected by grandfather’s cancer diagnosis – medical evidence provided – circumstances beyond applicant’s control – continued to pursue studies – successful academic progression – genuine intention to study – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140(1), 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 December 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 issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the delegate’s decision record was submitted to the Tribunal by the applicant for the purposes of the review.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

5. The applicant appeared before the Tribunal on 1 November 2019 to give evidence and present arguments.

6. The applicant was represented in relation to the review by their registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

11. The delegate’s decision record sets out the following material information:

    I note that PRISMS[[1]] records confirm that [the applicant] was non-compliant with condition 8202 because she was not enrolled in a registered course of study between 03 March 2017 and 17 August 2017.

    [1] The ‘Provider Registration and International Student Management System’.

12. When put to the applicant, she admitted in sworn evidence to the Tribunal that she was not enrolled in a registered course for the period of time as alleged in the delegate’s decision record.

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for a period of time. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

    Introduction

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

    Background

15. The applicant is a 23-year-old Vietnamese national who first arrived in Australia on 9 August 2015 as the holder of a Student (TU573) visa.

16. The applicant’s the applicant’s Provider Registration and International Student Management System record shows that since her arrival in Australia she has successfully completed the following course:

Course Name	Date Commenced	Date Completed
·     Academic English (Pre-Intermediate to Advanced)	10/08/2015	25/12/2015

Circumstances in which the ground of cancellation arose.

1. The applicant stated in evidence that she arrived in Australia as a 19-year-old on 25 November 2014 to pursue a study pathway of Academic English and University Foundation Studies leading to a Bachelor of Business.  She stated that she was scheduled to commence the Bachelor of Business on 6 March 2017.  She stated in evidence that she successfully completed her Academic English qualification, and that she attempted, but ultimately failed, her University Foundation Studies.  As a consequence of this failure the applicant did not meet the academic pre-requisite for admission to the Bachelor of Business and that CoE was cancelled.  The cancellation of that CoE led, ultimately, to the cancellation of the applicant’s Student visa.

2. The applicant’s evidence is that the deterioration in her studies in the first semester of her University Foundation Studies coincided with her paternal grandfather (in Vietnam) being diagnosed with cancer.  When pressed by the Tribunal the applicant stated that her relationship with her paternal grandfather was particularly significant for her as she had resided with her paternal grandparents after the death of her father and that they were her primary caregivers until she had attained majority. 

3. In support of her contention in respect of her grandfather’s diagnosis the applicant provided the Tribunal with copies of a series of medical documents dated through 2016.  Although they are mostly in Vietnamese, the English-language components are consistent with the diagnosis claimed by the applicant in respect of her grandfather.[2]   When pressed by the Tribunal the applicant was able to give sufficient details in respect of her grandfather’s ongoing treatment for the Tribunal to be satisfied, on balance, that the applicant’s claims in this regard are not exaggerated or concocted.  Although there may have been other factors involved in the applicant’s academic failure in 2016 the Tribunal considers that her grandfather’s condition was a proximate and sufficient cause of the applicant’s lack of focus on her studies and her consequent academic failure at this time. 

   [2] For the sake of the patient’s privacy it is unnecessary to provide further details in respect of the diagnosis.

4. Notably, since the cancellation of her Student visa on 1 December 2017, the applicant has pursued her studies in Australia, having recently completed a Diploma of Leadership and Management.[3] The applicant stated to the Tribunal that (subject to her visa status) she intends to commence an Advanced Diploma of Business on 11 November 2019.[4]

   [3] The applicant provided the Tribunal with a copy of the award of her Diploma of Leadership and Management dated 16 September 2019.

   [4] The applicant provided the Tribunal with a CoE for this course, created 1 November 2019.

5. On balance, the Tribunal is persuaded on the evidence that the applicant’s academic performance was adversely affected by her grandfather’s cancer diagnosis in 2016 which resulted in her failure to meet the academic pre-requisite for entry to her proposed Bachelor’s degree course and led, ultimately, to the cancellation of her Student visa.  The Tribunal also accepts that this circumstance was beyond the applicant’s control.  Whether these events may have been better managed is a matter of conjecture with the benefit of hindsight. 

6. The Tribunal places moderate weight on this factor in the applicant’s favour.

   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

7. The applicant stated to the Tribunal that wishes to continue her studies in Australia as her plans are to return to her home country to open a café business there.  When pressed, the applicant was able to provide reasonable details of her plan.  The Tribunal does not regard this as a “compelling” need, though it does disclose a reasonable motive in the applicant to wish to remain in Australia.  In all of the circumstances, however, the Tribunal does not weigh this factor either for or against the applicant.

   The extent of compliance with visa conditions

8. The applicant was responsible for a breach pertaining to her visa.  Her visa was granted on 5 August 2015 and, despite completing some of her studies, her course and her student visa were cancelled.  Ultimately it is for the applicant to take personal responsibility for managing her course requirements and visa obligations.  In all of the circumstances, however, the Tribunal gives less weight in this instance to cancelling her visa on account of the applicant’s particular circumstances.

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

9. The Tribunal accepts that the applicant and her family have invested financial resources in furthering her education in Australia, however she cited no particular hardships in her evidence to the Tribunal should her visa be cancelled. 

10. In all of the circumstances, the Tribunal does not weigh this factor either in favour of or against the applicant.

    Past and present behaviour of the visa holder towards the department

11. The delegate noted the following in their decision record in respect of this factor:

    There is no evidence that [the applicant] has been uncooperative with the Department. As such, I am satisfied that this would not form any reason to make a decision to not cancel her visa..

12. As with the delegate, the Tribunal does not weigh this factor either in favour of or against the applicant.

    Whether there would be consequential cancellations under s.140

13. There are no consequential cancellations under s.140; accordingly the Tribunal places no weight on this factor 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

14. The delegate’s decision indicates that if the applicant’s visa were to be cancelled she would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further, s.48 of the Act means that she will have limited options to apply for further visas in Australia.

15. There is nothing to indicate the applicant would not be able to return to Zimbabwe.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

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

16. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Conclusion

17. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8202 of her visa.  The Tribunal has found however that the circumstances in which the breach occurred were beyond her control.   The Tribunal is persuaded that her successful academic progression since that time is consistent with the applicant holding both a genuine intention and motive to study in Australia and an intention to abide by her obligations as the holder of a Student visa.  The Tribunal places moderate weight on these circumstances and, when combined with the applicant’s recognition of her breach of her visa condition, on balance, and considering the applicant’s relative youth at the time of the events in question, the Tribunal concludes that the visa should not be cancelled.

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Damian Creedon
    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.