Le (Migration)

[2018] AATA 4763

Le (Migration) [2018] AATA 4763 (12 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Ngoc Huong Le

CASE NUMBER:  1702030

HOME AFFAIRS REFERENCE(S):           BCC2016/4333022

MEMBER:Joseph Lindsay

DATE:12 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 12 October 2018 at 1:17pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (ClassTU) visa – Subclass 57 Higher Education Sector – enrolment in a registered course – death of family member – period of non-enrolment – family member’s financial support – letter of offer after NOICC – decision under review affirmed


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 31 January 2017 made by a delegate of the Minister for Immigration 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 complied with a condition of her visa, namely condition 8202(2)(a) that requires the holder of the visa to be enrolled in a registered course. 

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. On 6 February 2017 the applicant applied to the Tribunal seeking review of the Department of Immigration’s decision and provided a copy of the Department’s decision. On 11 September 2018, the applicant was invited to attend a hearing at the Tribunal. The email address used for this purpose was the email address provided by the applicant. On 2 October 2018 and 8 October 2018, the Tribunal sent SMS messages to the applicant notifying them of their hearing date on 9 October 2018. The mobile phone number used for this purpose was the mobile phone number provided by the applicant. It is noted however that the SMS messages failed to be delivered to the mobile phone number provided by the applicant. The applicant provided no other mobile phone number. On 9 October 2018 the applicant failed to attend the hearing at the Tribunal. The applicant has provided no reason for not appearing at the hearing. 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. Accordingly, the Tribunal has decided to make a decision based on the available information.

5. 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

6. 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.

7. On 18 January 2017, the Department notified the applicant of the intention to consider cancellation of her visa. On 24 January 2017, the applicant provided a response to the department.

8. In her response the applicant provided:

   a.a NAATI translated copy of a death certificate allegedly pertaining to the applicant’s grandfather’s death in Vietnam on 27 February 2016.          

   b.a NAATI translated copy of a document entitled ‘Confirmation’ allegedly pertaining to the applicant’s parents indicating that their daughter, the applicant, was studying in Australia when her grandfather passed away on 27 February 2016.

9. The applicant also provided a typed response indicating:

   a.she was granted her student visa on 12 June 2015 based on her enrolment at Swinburne University to study for her Bachelor degree.

   b.        she completed an English course.

   c.In early 2016 she was deeply stressed and depressed due to her family situation, whereby her grandfather’s health deteriorated and then her grandfather passed away.

   d. the news of her grandfather’s passing broke her heart, made her out of control and disoriented.

   e.her grandfather had taken care of her when she was young and he supported her financially and mentally while she was studying in Australia.

   f. she was very sad and stressed for several months and so did not attend to her studies.

   g. she was sorry for not re-enrolling in her courses but hoped to keep her student visa and continue her studies.

   Did the applicant comply with condition 8202?

10. 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).

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 has not been enrolled in a registered course of study since 8 March 2016. As far as the Tribunal is aware, the applicant has remained in Australia since that time.

13. The applicant’s response to the Department dated 24 January 2017 indicates that the applicant knew that she had not been enrolled in a registered course of study and that, in doing so, she knew she had not complied with the requirements of her visa, namely condition 8202(2).

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

    Consideration of the discretion to cancel the visa

15. 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’.

16. The Tribunal has considered the following factors as detailed below.

    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

17. The purpose of the applicant’s travel and stay in Australia appears to be to undertake tertiary studies at Swinburne University. There is no information to suggest that the applicant has travelled to and stayed in Australia for reasons other than to study, although the Tribunal accepts that the applicant has stayed in Australia for a further two and a half years without studying. The Tribunal is not aware of any compelling need on the part of the applicant to travel to or remain in Australia.

18. Accordingly, the Tribunal gives this consideration little weight in the applicant’s favour.

    The extent of compliance with visa conditions

19. The applicant has not been enrolled in a registered course of study since 8 March 2016, now some two and a half years. The Tribunal considers this time period to be a significant period of time to not be enrolled. These circumstances lead the Tribunal to accept that the applicant has demonstrated significant non-compliance with condition 8202(2)(a) of her visa, that required her to be enrolled in a registered course of study.

20. Accordingly, the Tribunal gives this consideration little weight in the applicant’s favour.

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

21. In her response to the Department dated 24 January 2017, the applicant indicated that she received financial support from her grandfather who died in February 2016. This may indicate that, at that time, the death of her grandfather had the potential to cause her financial hardship. However, the applicant has continued to remain in Australia for some two and a half years without being enrolled in a course of study, and 18 months since her student visa was cancelled. There is no evidence that any hardship at all has been caused to the applicant as a result of her student visa being cancelled, as she continued to remain in Australia for 18 months after her student visa was cancelled.

22. Accordingly, the Tribunal gives this consideration little weight in the applicant’s favour.

    Circumstances in which ground of cancellation arose

23. In her submission to the Department the applicant indicated, in summary, that the circumstances in which the ground of cancellation arose was the death of the applicant’s grandfather and the consequential detrimental impact this event had on her.

24. If the applicant had attended the hearing, the Tribunal would have asked the applicant a number of questions, including:

    a.why she did not commence her studies at all, noting she was scheduled to commence her Diploma of Business prior to the death of her grandfather?

    b. if she was so distressed at her grandfather’s situation, what approaches did she make to Swinburne University to seek help or advice in relation to her studies or course enrolment?

    c. if she was so close to her grandfather, why did she not return to Vietnam to attend his funeral?

    d.what approaches did she make to the Department to seek help or advice in relation to her student visa around the time her visa was cancelled due to her not commencing her studies?

    e. if she was so distressed at her grandfather’s situation, what approaches did she make to any mental health professionals to seek help or advice?

25. Unfortunately, because the applicant chose not to attend the hearing the Tribunal was not able to put these questions to her in the hearing.

26. Due to the limited amount of information provided by the applicant, the Tribunal is not satisfied that the death of the applicant’s grandfather and the consequential detrimental impact this event purportedly had on her reasonably justifies her actions in failing to commence any of her courses, including her Diploma of Business on 22 February 2016. 

27. Accordingly, the Tribunal gives this consideration little weight in the applicant’s favour.

    Past and present behaviour of the visa holder towards the department

28. There is no evidence that the applicant has been anything other than cooperative with the Department.

29. Accordingly, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140 of the Act

30. The Tribunal is not aware of any person whose visa would be cancelled under s.140 of the Act as a result of this cancellation.

31. Accordingly, the Tribunal finds that the cancellation of the visa would not result in the consequential cancellation of any dependant visa holders.

32. The Tribunal gives this consideration no weight 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

33. The Tribunal accepts that if the applicant’s student visa is cancelled, she would need a visa to remain in Australia lawfully. At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. 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.

34. 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.

35. The Tribunal gives this consideration no weight 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

36. The Tribunal is not aware of any international obligations that may be breached if the applicant’s student visa is cancelled.

37. The Tribunal gives this consideration no weight in the applicant’s favour.

    Any other relevant matters

38. The Tribunal notes that the applicant obtained a letter of offer from Della International College Pty Ltd dated 23 January 2017. The Tribunal notes that the applicant obtained this letter of offer after she received the notice from the Department dated 18 January 2017. The Tribunal accepts that the applicant’s actions in obtaining this letter of offer were done as a result of the notice she received from the Department dated 18 January 2017.

39. The Tribunal accepts that although there may be some hardship to the applicant as a result of the applicant’s student visa being cancelled, there is no evidence to suggest that the applicant could not complete her studies outside Australia.

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

    DECISION

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