LE (Migration)

[2019] AATA 1783

LE (Migration) [2019] AATA 1783 (21 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huu Thanh LE

CASE NUMBER:  1717768

HOME AFFAIRS REFERENCE(S):           BCC2017/2189725

MEMBER:Michelle East

DATE:21 March 2019

PLACE OF DECISION:  Perth

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

Statement made on 21 March 2019 at 11:56am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – applicant did not comply with condition 8202 – applicant was not enrolled in a registered course of study –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116,189,198
Migration Regulations 1994, Schedule 8
CASES
BCR16 v MIBP (2017) 248 FCR 456
COT15 v MIBP (No 1) (2015) 236 FCR 148

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. The delegate cancelled the visa on the basis that there was a ground for cancellation for breach of condition 8202 of the Act, namely the applicant was not enrolled in a registered course of study from 14 November 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.

3. A copy of the delegate’s decision was attached to the application for review.

4. The applicant appeared before the Tribunal on 9 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Tran, the applicant’s partner.  The applicant submitted a witness list of people he proposed to call to give evidence at the hearing.  All the witnesses listed apart from his mother, Le Thi Thao and cousin, Anita Huynh, had provided a witness statement and as the Tribunal had no further questions for these witnesses, it was agreed that it was unnecessary to call them.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

7. 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?

8. 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).

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

10. As outlined in the delegate’s decision, information relied on from the Provider Registration and International Student Management System (PRISMS) indicated the applicant was not enrolled in a registered course of study from 14 November 2016.

11. At hearing the applicant confirmed he was not enrolled in a registered course of study from November 2016. 

12. On the evidence before the Tribunal including the applicant’s own submissions, the applicant was not enrolled in a registered course of study.  Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

13. 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’.

14. On 1 August 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because he was not enrolled in a registered course of study and therefore failed to comply with condition 8202(2) of his visa.

15. The applicant’s representative responded on 8 August 2017 explaining that they did not dispute the ground for cancellation existed however, in October 2016 the applicant needed to travel to Vietnam to see his grandfather who was terminally ill and while he was in Vietnam, his girlfriend was killed in a motorcycle accident.

16. The applicant’s representative requested an extension of time within which to respond to the NOICC with the intention of obtaining psychological evidence to explain the applicant’s state of mind.

17. On 10 August 2017 the delegate made its decision cancelling the visa.

18. The applicant arrived in Australia on 16 October 2013 having been granted his student visa on 9 October 2013.  He completed a general English course and English for academic purposes in 2013 and 2014.  In March 2015 he completed a further general English course.  He was enrolled in a Diploma of Business from October 2014 until May 2015, however received a deferment/suspension due to compassionate or compelling circumstances. 

19. The applicant was enrolled in a general English course from December 2014 to March 2015 however sought a deferment/suspension on compassionate or compelling grounds for ‘study break’.  The applicant gave evidence at the hearing that his father had an accident in Vietnam and he needed to go and visit him.

20. The applicant studied a Certificate III in Commercial Cookery from May 2015 to April 2016 and completed a Certificate IV in Commercial Cookery in October 2016.  He has not studied since that time.

21. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

    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

22. The purpose of the student visa is to enable the visa holder to undertake study in Australia.

23. As outlined above the applicant has not been enrolled in a registered course of study since 14 November 2016.

24. The Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaged in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

25. The Tribunal asked the applicant whether he had compelling reasons to remain in Australia.  The applicant explained that his partner had completed his studies and had applied for a Sub-class 485 visa.  He said his partner would be very sad if the applicant returned to Vietnam and he had to stay here.  The applicant and his partner both gave evidence of how the partner had provided emotional support to the applicant when he was suffering depression after the deaths of his grandfather and girlfriend in Vietnam.  The Tribunal accepts this evidence.

26. The applicant’s non-engagement in study for which his visa was granted weighs in favour of cancellation. The Tribunal accepts the applicant’s partner would be impacted if the applicant were required to leave Australia however finds this falls short of a compelling reason to remain in Australia.

27. The Tribunal finds this weighs against the applicant.

    The extent of compliance with visa conditions

28. The applicant was granted a Subclass 573 Higher Education Sector visa to undertake specified studies in Australia.  As noted in the delegate’s decision, the applicant has not been enrolled in a registered course of study since 14 November 2016.

29. The Tribunal considers the condition of his visa to be important because one of the primary reasons for holding a student visa is to be enrolled and to study and he had not done so for a significant period of time.  The Tribunal has no evidence to suggest a breach of other visa conditions in the past and present.

30. The Tribunal considers this weighs against the applicant.

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

31. The applicant’s representative, when responding to the NOICC outlined the factors leading to the applicant not continuing with his studies in 2016, namely that his grandfather had become terminally ill and his girlfriend had died in a motorcycle accident.

32. Several witnesses gave evidence on behalf of the applicant in the form of statements.  All the witnesses attest to the impact the death of the applicant’s grandfather had on the applicant.  The applicant himself said that he was ‘feeling very sick’ and frequently suffered headaches.  He said his partner has been important in helping him cope with his loss by taking him on holidays and looking after him.  He said he would be very sad if his visa was cancelled and his family would be very sad because they would lose the money they had contributed to his education and he said his grandfather wanted him to study to have a better future.  The applicant’s partner also gave evidence of the negative emotional effect it would have on him if the applicant were to return to Vietnam.

33. At the time of responding to the NOICC, the applicant’s representative said she was seeking for him to be assessed by a psychologist.  The Tribunal questioned the applicant whether he had been assessed by a psychologist or whether he had been receiving treatment.  The applicant said his partner had been the one supporting him by taking him travelling and looking after him.  He denied receiving any formal counselling.

34. The Tribunal accepts that the applicant would suffer some emotional, psychological and financial hardship if he were to return to Vietnam without any qualifications.

35. The Tribunal gives this some weight in the applicant’s favour.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

36. After receipt of the NOICC the applicant, via his representative, provided an explanation as to the circumstances in which the ground of cancellation arose.

37. The Tribunal explored this issue further with the applicant at hearing.  The applicant said he returned to Vietnam in October 2016 because his grandfather was very ill and wasn’t expected to live very long.  He said his grandfather raised him and accepted his sexuality.  He said he was very close to his grandfather and was very distressed when he passed away.  He also said that his girlfriend passed away in a motorcycle accident around the same time while he was still in Vietnam.  The Tribunal questioned the applicant about this relationship given that he is now in a same sex relationship.  He said his parents expected him to be ‘straight’ and he was in a close friendship with this girl while in Vietnam.

38. The applicant said when he returned from Vietnam his head was ‘not normal’.   He said he applied to the school to postpone for one term because of family problems.  He said they sent him an email that they had received his application but did not inform him of the result.  He said he didn’t follow up with the school.

39. When the Tribunal asked him why, he said it was because of the emotional turmoil he had suffered.  He said he had headaches and depression and relied on his partner to support him.

40. The Tribunal is prepared to accept the situation with his family may have affected his ability to study and to that extent was beyond his control.  However, the applicant by his own admission did not contact his education provider after the initial request to defer for a term.

41. The Tribunal is satisfied that some of the circumstances in which the ground of cancellation arose were beyond the applicant’s control.  The Tribunal gives this some weight in the applicant’s favour.

    Past and present conduct of the visa holder towards the Department

42. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

    Whether there are mandatory legal consequences such as whether cancellation would result in the visa holder being unlawful and subject 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

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

44. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour.

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

45. The applicant provided a significant amount of material relating to same sex relationships in Vietnam.  The Tribunal has considered this material and whether cancellation of his visa would be in breach of Australia’s international obligations.

46. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. There is no suggestion that the applicant is prevented from validly applying for or being granted a protection visa by s.48A of the Act or because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456. The Tribunal therefore gives this no weight in the applicant’s favour.

47. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8202 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking study for which his visa was granted.   The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation, some of the circumstances were beyond his control and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

48. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Michelle East
    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.