Le (Migration)

[2019] AATA 884

Le (Migration) [2019] AATA 884 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Muc Le

CASE NUMBER:  1713624

HOME AFFAIRS REFERENCE(S):           BCC2017/1357434

MEMBER:Joseph Lindsay

DATE:8 February 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 08 February 2019 at 12:52pm

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 ground for cancellation – mother’s health issues – financial circumstances – relationship breakup – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 360, 379A
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 13 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to remain in a registered course of study and breached condition 8202(2)(a) of her student 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 review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on Friday 8 February 2019 at 10:00am. The invitation was sent to the applicant via the email she provided to the Tribunal. The applicant did not respond to the hearing invitation. The Tribunal also sent three SMS reminders about the hearing prior to the hearing. All SMS reminders appear to have been delivered to the mobile phone number that the applicant had provided to the Tribunal. The applicant provided no other email address or mobile phone number to the Tribunal.

4. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5) of the Act.

5. No satisfactory reason for the non-appearance has been given. Accordingly, the Tribunal has made the decision on the basis of the information available to the Tribunal.

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. The delegate’s decision record, as provided by the applicant, states that the applicant had not been enrolled in a registered course of study since 4 March 2016. In addition, the applicant’s letter dated 9 October 2017 indicated that the applicant was aware that they were not enrolled in a registered course of study and they admitted they had breached condition 8202(2)(a).

10. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study since 4 March 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

11. 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’.

    The circumstances in which the ground for cancellation arose

12. The delegate’s decision record notes that the applicant did not respond to the Department’s Notice of Intention to cancel her visa dated 23 May 2017.

13. However, the Tribunal notes that on 13 January 2018, the applicant provided a number of documents to the Tribunal, including:

    a.        a document with the title ‘letter explaining’ dated 9 October 2017.

    b.        a medical certificate for the applicant dated 8 January 2018.

    c. a non-NAATI translated document  with the title ‘loan payment’ dated 12 November 2017.

    d.a non-NAATI translated document  with the title ‘credit contract’ dated 12 November 2015.

    e.a non-NAATI translated document  with the title ‘prescription’ dated 4 January 2018.

    f.a non-NAATI translated document  with the title ‘echocardiography’ dated 4 January 2018.

    g.a non-NAATI translated document  with the title ‘prescription’ dated 7 March 2017.

14. The document with the title ‘letter explaining’ dated 9 October 2017 states:

    First of all, I fully agree with the warning about the cancellation of my student visa On the basis of reports from Registered Providers and International Students Management System (PRISMS). I thank you for giving the warning and extending the time to meet so that I can have the opportunity to explain my current situation in detail.

    I made the wrong decision, which led to the cancellation of the eCoE for my course and let me receive a warning letter about the cancellation of the Immigration and Border Protection (DIBP) visa, because I Failure to comply with visa requirements 8202 (2) (a).

    I feel ashamed of not complying with the student visa condition and believe it is unacceptable in a progressive and equitable country like Australia where law and law are supreme. first. However, I must admit that I have limited knowledge of Australian law.

    Also, during the course of the event (during the time of the event), a series of external factors suddenly appear and significantly affect my life, leading to my wrong decision. I briefly describe the main points as follows:

    First, a series of unfavorable events related to my mother's health have so far altered the financial situation of my financial sponsor. My mother is the main coordinator of my family's business, so The adverse changes in her health triggered a severe downturn in business, directly affecting the financial support for my research. This also affected my psychology because of the need to rearrange my future plans in Australia.

    Second, in addition to the health issues of my mother and my family's business, I too psychologically affected by the break up relationship in July 2016. I am really depressed and stressful. I consulted a physician during my absence at school, and those consultations significantly helped me consciously to identify problems.

    I hope you make a positive decision for me so that I have the opportunity to complete the course.

15. The Tribunal places no weight on any of the non-NAATI translated documents as detailed above because they are not NAATI translated documents.

16. The medical certificate for the applicant dated 8 January 2018 states that Dr Nguyen examined the applicant on 8 January 2018 where the applicant told him she was suffering a stress condition as a consequence of separation from her ex-partner, and that this was the reason why she could not attend school from 5 July 2016 to 10 March 2017.

17. The Tribunal finds that:

    a.the applicant ceased to be enrolled in a course of study on 4 March 2016 – well before the timeframe of 5 July 2016 to 10 March 2017;  and

    b.the period of time in which Dr Nguyen says the applicant told him she could not attend school is not relevant to the period of time the applicant ceased to be enrolled in a course of study.

18. Accordingly, the Tribunal places no weight on the medical certificate for the applicant dated 8 January 2018.

19. Based on the evidence before the Tribunal, the Tribunal does not accept the applicant’s claims that her mother had poor health, or that the family’s business suffered a severe downturn that affected the applicant financially, or that she was psychologically affected due to this situation.

20. Based on the evidence before the Tribunal, the Tribunal does not accept the applicant’s claim that she experienced a relationship break up in July 2016 or that she suffered any consequent stress or depression or that she consulted a physician during her absence from school.

21. In consideration of the above, the Tribunal does not accept that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are exceptional circumstances.  Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    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 Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

23. The Tribunal finds that the applicant appears to have complied with her visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

24. The applicant made no submission is respect to any hardship she may experience if her visa was cancelled. The Tribunal gives no weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

25. There is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

26. There is no indication that there were any dependants attached to the applicant’s student visa. The Tribunal places no weight on this information 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

27. There is no indication that that applicant is not aware of the legal consequences of the cancellation of her student visa.

28. The Tribunal accepts that if the applicant’s student visa is cancelled, she would need a visa to remain in Australia lawfully.

29. The Tribunal accepts that the applicant will need to make her own arrangements to obtain a visa to lawfully remain onshore and that if she does not do so, she will be in Australia unlawfully and may be liable to detention and removal if she chose not to return to Vietnam.

30. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of her student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

31. The Tribunal places low weight on this information in the applicant’s favour.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

32. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

33. Based on the evidence before the Tribunal, there are no other relevant matters.

    Conclusion

34. The Tribunal finds that the applicant received her Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 14 January 2014 - now over five years ago.

35. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 4 March 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).

36. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances. 

37. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

38. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    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.