Le (Migration)

[2019] AATA 2501

Le (Migration) [2019] AATA 2501 (22 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Thuy Linh Le

CASE NUMBER:  1716525

HOME AFFAIRS REFERENCE(S):           BCC2017/1654346

MEMBERS:Stephen Conwell (Presiding)
Benjamin Murphy

DATE:22 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 22 March 2019 at 4:18pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – breached condition – applicant was not enrolled in a registered course – applicant has not complied with a condition of the visa – little to show by way of educational achievement – indication the applicant was not pursuing the purpose for her travel to Australia – not actively engaged in studies – Tribunal considers the breach to be significant – satisfied that there is not a degree of hardship – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 189, 198
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 27 July 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 delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course since 21 October 2016. The delegate went on to consider whether the visa should be cancelled and weighed the factors for and against before deciding to cancel the 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 13 March 2019 to give evidence and present arguments. The applicant was represented in relation to the review by her migration agent who attended the Tribunal hearing.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The Tribunal also received oral evidence from Mr Dung Ha Tien, the applicant’s husband.

5. The applicant provided to the Tribunal a copy of the delegate’s decision with her application for review.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

7. Where used in this decision:

   ·COE refers to Confirmation of Enrolment;

   ·The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection);

   ·VET refers to Vocational Education and Training.

8. 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

9. 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?

10. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. 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 her or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

    ·has not been certified by her or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

12. The Tribunal notes that the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 5 July 2017 because it appeared that the applicant was not enrolled in a registered course of study since 21 October 2016. The delegate’s decision indicates that the applicant replied to the NOICC on 12 July 2017; in her reply the applicant did not dispute that there are grounds for cancellation.

13. The applicant’s evidence at hearing confirmed:

    ·    that she first arrived in Australia on 4 January 2014 on a sub-class 573 visa;

    ·    having been in Australia for over four years she had little to show by way of educational achievement. This has arisen through the difficulties she encountered when seeking to transfer between educational providers; 

    ·    that she has not been enrolled in a registered course of study since 21 October 2016 for some six months;

    ·    she believes that she has received confusing and at times conflicting advice from migration agents and her educational providers;

    ·    her purpose in coming to Australia was to study. she hopes to be granted a further visa in order to complete her studies;

    ·    she had a brief email exchange with a Dr Tuan between 25-26 January 2019 concerning her mental state (a copy of which was tendered to the Tribunal). There had been no face-to-face consultation.

14. The applicant’s husband, Mr Dung gave evidence at hearing:

    ·    that she first arrived in Australia in December 2009, also on a Student visa;

    ·    she and the applicant married a few weeks ago on 11 March 2019;

    ·    that the applicant should be given an opportunity to complete her studies in Australia.

15. As the applicant has confirmed her lack of enrolment since 21 October 2016 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

16. 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’

17. At hearing the applicant tendered a copy of email correspondence which appears to be between the applicant and a “Dr. Tuan” in Vietnam dated 25-26 January 2019. The documents tendered were a transcript of the email exchange in Vietnamese and its English translation. There is no evidence before the Tribunal to indicate that prior to the period of her non-enrolment that the applicant sought advice from her education providers or that she applied to defer her studies on the basis of her mental health. 

18. The brief email exchange between the applicant and Dr Tuan occurs some 18 months after the cancellation of her visa; it discusses the applicant’s mental and emotional state however it does not address the discretionary factors pertaining to the cancellation of the applicant’s Student visa.

19. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. The applicant has not been enrolled in a registered course of study on since 21 October 2016.This is an indication the applicant was not pursuing the purpose for her travel to Australia; as she was not actively engaged in studies since that date.  At the time of the delegate’s decision this period of non-enrolment of approximately nine months. 

20. The Tribunal considers the breach to be significant, given the length of time in which the applicant failed to maintain enrolment.  The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted.

21. Further, based on the information before it, the Tribunal is not satisfied the breach occurred in circumstances beyond the applicant’s control.  Again, based on the information before it, neither does the Tribunal consider there are extenuating or compassionate circumstances in this case.

22. The Tribunal acknowledges that the cancellation of the applicant’s visa will be disappointing to the applicant since she would most likely wish to remain onshore with Mr Dung, whom she married a few weeks ago.  However, the Tribunal is satisfied that there is not a degree of hardship such that the visa should not be cancelled.

23. The Tribunal notes the applicant had not identified any hardship that may be caused to her and/or any family member by the cancellation of her visa. However, the Tribunal accepts the applicant might be subject to some financial difficulty if the visa is cancelled. The Tribunal also accepts that if the applicant’s visa is cancelled she would become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. She would also have limited options to apply for further visas in Australia and may thus be required to return to her country of origin. However, this does not persuade the Tribunal it should exercise its discretion not to cancel the visa.

24. The Tribunal notes there is no evidence that any family member/s in Australia would be negatively impacted by the cancellation of the applicant’s visa. 

25. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.  The Tribunal is also not satisfied there are persons in Australia whose visas would, or may, be cancelled under s.140.

26. Regarding Australia’s international obligations, the Tribunal is not persuaded that the circumstances of this case were such that would engage Australia’s international obligations. There is no evidence of children (or other family members) in Australia whose interests would be affected by the cancellation.  There was nothing to suggest that family violence was a relevant factor.

27. The Tribunal has considered all of the applicant’s circumstances and has found that the applicant breached the enrolment requirement in condition 8202, and that this breach was significant.  The Tribunal has not seen any evidence to indicate the applicant has undertaken study in Australia in a registered course of study, since 21 October 2016. Considering the circumstances as a whole, the Tribunal is satisfied the visa should be cancelled.

    DECISION

28. The Tribunal affirms the decision to cancel the applicant’s Class TU visa. 

    Stephen Conwell
    Member

    Benjamin Murphy
    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.