Le (Migration)

[2021] AATA 2202

Le (Migration) [2021] AATA 2202 (13 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huu Thanh Le

CASE NUMBER:  1932139

HOME AFFAIRS REFERENCE(S):          BCC2017/2189725

MEMBER:Joseph Lindsay

DATE:13 May 2021

PLACE OF DECISION:  Melbourne

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 13 May 2021 at 4:56pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to the non-compliance – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

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 10 August 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. On 17 November 2020 the applicant attended a hearing by audio with the Tribunal. The applicant’s representative also attended the hearing by audio with the Tribunal. The applicant was assisted by an interpreter. The Tribunal has also considered the post hearing submissions provided on 30 November 2020.

3. 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

4. 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?

5. 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).

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

7. As part of his application for review, the applicant provided a copy of the delegate’s decision to the Tribunal and the Tribunal has considered the information in that decision.

8. In the hearing, the applicant agreed that he had not been enrolled in a registered course of study since 14 November 2016.

9. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 14 November 2016. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

   Consideration of the discretion to cancel the visa

10. 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 Procedural Instruction ‘General visa cancellation powers’.

    The circumstances in which the ground for cancellation arose

11. In the hearing, the Tribunal spoke with the applicant about the circumstances caused him to cease his enrolment in a registered course of study in late 2016.

12. The applicant said that all of the information he had provided to the Department and to the Tribunal was still true and correct, including the more recent submissions dated 11 November 2020.

13. The Tribunal spoke to the applicant about his claim of having to go back to Vietnam in October 2016 because of his grandfather’s situation where his grandfather became ill, and the applicant said that he did travel back to Vietnam in October 2016 due to his grandfather’s health situation. The applicant also said that while he was in Vietnam his girlfriend was killed in a motorcycle accident.

14. The Tribunal spoke to the applicant about witness statements he provided in 2018. In this conversation, the applicant said that a man named “Duy” was still his partner and that he had been with his partner continuously since 2015 and that they are living together in Sydney. In both the written submissions and in the hearing, the applicant indicated that he believes that he is gay and raised concerns about how his parents would view such a situation. He indicated that this latent issue has been the cause of some stress to the applicant.

15. In respect to the above, the Tribunal makes the following findings.

16. The Tribunal accepts that a combination of circumstances has happened to the applicant that appear to have materially affected his ability to complete his course, including the illness and death of his grandfather, the death of his then girlfriend, the realisation of his latent homosexuality and the stress caused to him about how his parents might feel about it.

17. The Tribunal does not accept that the applicant would be harmed for any reason in relation to his homosexuality if he returned to Vietnam in the foreseeable future.

18. Accordingly, the Tribunal has decided that the applicant should be given a last chance to prove whether he or not he will complete his studies.

    DECISION

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

    Joseph Lindsay
    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.