Le (Migration)

[2023] AATA 4718

Le (Migration) [2023] AATA 4718 (20 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nam Hung Le

REPRESENTATIVE:  Mr Brian Quang Dinh (MARN: 1799511)

CASE NUMBER:  2212506

HOME AFFAIRS REFERENCE(S):          BCC2022/2194278

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         20 September 2023 at 10:35 am (NSW time)

DATE OF WRITTEN RECORD:                25 January 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 25 January 2024 at 11:55am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant had not been enrolled in a registered course of study– breached condition 8202 – an extensive period of non-enrolment – had been in Australia for almost 6 years without having completed any courses of study – COVID had affected his ability to enrol and study – decision under review affirmed  

LEGISLATION
Migration Act 1958, s 116

APPLICATION FOR REVIEW

Introduction

1. This is an application to review a decision of a delegate of the Minister for Home Affairs who on 22 August 2022 cancelled the applicant’s Student (Temporary) (Class TU) (Subclass 500) visa under Sec 116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the ground that the applicant had not complied with condition 8202(2)(a) in that he had not been enrolled in a registered course of study as from 5 May 2020. 

3. At the hearing on 20 September 2023, the Tribunal made an oral decision which affirmed the delegate’s decision and gave an oral statement of reasons for it.

4. On 20 November 2023 the Department requested the Tribunal to provide a written record of those reasons.

5. What follows is the requested record.

   STATEMENT OF REASONS

   Background and procedural aspects

6. The visa, which had been granted to the applicant on 28 October 2019, replaced earlier Student visas which had been granted to him in 2014 and 2017. All three were granted to him subject to condition 8202, among other conditions. 

7. There is no issue in this review that the subject visa was granted to him on that condition.  There is no issue that he has been in breach of it, nor is there any issue that the breach afforded grounds for the cancellation of his visa.  The only issue which I need determine in this review is whether his visa should be cancelled because of that breach.

8. The Review Application was filed on 25 August 2022 and is therefore within time. 

9. The Hearing Invitation, which was sent out on 30 August 2023, invited the applicant to attend a video hearing today, 20 September 2023. The letter requested him to provide all documents on which he intended to rely in support of his case by 13 September 2023.

10. The applicant’s agent responded to that email on 14 September 2023 by indicating that the applicant intended to appear at the hearing and a completed Response form was filed at or about that time.

11. The only document which the applicant provided to the Tribunal in support of the review was a copy of a COE for a Bachelor of Business (Leadership and Management) course at AIM Education. The COE, which was generated on 30 September 2019, had a proposed start date of 18 November of that year and a projected end date of 8 July 2022. The applicant has provided no other documentary material in support of his review case.

    The hearing, an overview of his case

12. The applicant appeared today to give evidence and present his case. Most of his evidence was given in English. He appeared to me to have a reasonably good understanding of it. A Vietnamese interpreter was on hand and assisted him with some of his evidence but most of it was given without translation.

13. Ultimately, so far as his oral evidence is concerned, I am generally prepared to accept what he has said even though some of his evidence relating to his academic history is contrary to the information in the PRISMS record. But I do not accept everything he has said. I do not accept his evidence that he did not know that he could approach his provider, AIM Education, to seek a deferment of his enrolment in the Business course during 2020. 

14. The applicant told me that he was unaware that an international student could seek assistance from a provider to defer enrolment and studies in a registered course. This is an assertion which the delegate specifically rejected in his decision and which until today the applicant had not seen fit to contradict at all. It strikes me as being inherently implausible if not incredulous that an experienced student such as this one would not have known that this was an option which he could and should have taken if he was having difficulties with his studies. 

15. It may very well be that he was having personal issues at the time but, for reasons I will come to shortly, I do not accept that the issues he was having gave him a reason not to study as from November 2019.

16. In addition to the applicant’s oral evidence, I have had access to a Departmental file which contains the NOICC, the applicant’s response, and the decision under review.

    The process which led to the cancellation

17. As noted earlier, the NOICC was issued on 9 August 2020 for an asserted breach of a fundamental condition which attached to the visa. The delegate recites in the NOICC that according to PRISMS the applicant had not been enrolled in a full-time registered course of study since 5 May 2020 when his enrolment in the Bachelor of Business (Leadership and Management) course at AIM Education had been cancelled for unsatisfactory course progress. 

18. Based on that information, there appeared to the delegate to be a ground for cancelling the applicant’s visa under Sec 116(1)(b) of the Act because the visa had been granted to him on the basis that he was required to maintain enrolment in a full-time registered course. The applicant was asked to respond to the NOICC within five working days, which he did on 15 August 2022.

19. In his response email of 15 August 2022, the applicant states that the breach occurred when he had been under some pressure, that he regretted his mistakes and the consequences of them and hoped that he would be given another chance. That was the extent of his response. He reiterated as much in the oral evidence which he gave today but for reasons I will come to I do not accept that mistakes of this kind or dimension can or should be excused, in the absence of an acceptable explanation for them.

20. In his response, the applicant stated that he had family issues which he says led to depression. He then refers to COVID which he says led to a feeling of isolation which made things even worse for him. The applicant said that he did not get to talk to his parents or friends which led to his decision not to study. He stated that he really regretted having done that, understood the consequences and hoped that the delegate would give him the chance to finish his course.

21. The delegate considered the relevant factors in his decision. Having done that and having given to them what he regarded to be appropriate weight, he concluded that the reasons for cancelling the applicant’s visa outweighed the reasons for not cancelling it. I will come back and look at these reasons in a little more detail in a moment.

    Approaching the issues

22. In approaching the issue of whether the visa should be cancelled there are no prescribed matters which under the Act I must consider but the delegate has usefully referred to them in his decision and these are in accordance with the guidelines set out in the Procedural Instruction Manual. I will adopt in this decision the same approach in resolving the issue of whether the visa should be cancelled.

23. I must approach that issue on the evidence which I have, whether that evidence was before the delegate or not.  

    Evidence and findings in the review

24. Much of the applicant’s academic and personal history in Australia is uncontroversial. He was born in Vietnam in 1996 and was granted a TU-573 visa to study a Bachelor of Information Technology on 30 June 2014. He told me today and I accept that he first enrolled in that course at Central Queensland University (CQU) and arrived to begin studies at that provider in early July 2014. He told me and I accept that the course had a 3-year study duration. 

25. He accepted in his evidence that he transferred to another provider, which he identified as ACU during 2015 to continue his studies in that course.  He accepted that this enrolment in that course was cancelled when he ceased studies during 2017. He also said and I accept that he went back to CQU at some stage in 2018 but did not indicate his reasons for so doing.

26. In September 2017, he was granted a TU-500 visa to complete the IT course. That visa was also subject to condition 8202, as had the earlier one. He told me today that he completed two relatively short English courses in September and October 2017 and PRISMS confirms that he did.  

27. PRISMS records that he completed the Bachelor of IT in July 2019. The applicant at first told me that he did complete this course but later said that he had not, suggesting that he had completed all the units except one which he failed 3 times, a result which entailed an automatic exclusion from the course. Although this is in my experience an unusual scenario for a student at the Higher Education level, I am prepared to give him the benefit of the doubt and go along with what he said about this in preference to the evidence in the PRISMS record.

28. He did not provide to me an Interim Transcript of his results from CQU. It would have been helpful if he had done this given his evidence as to why he was unable to complete it.

29. He then enrolled in the Bachelor of Business (Leadership and Management) course at AIM Education, a course which attracted a total tuition fee of some $45,000, $7,500 of which was according to the COE pre-paid, a fee which would have taken him through to late March 2020. He told me that his parents paid to AIM about $13,000 up-front. Although this is not confirmed by the COE it could well have been paid after the document was generated. Again, I accept his evidence on this. An up-front fee of $13,000 would have taken his tuition in this course up to about mid-2020.

30. He was granted the subject TU-500 visa in late October 2019 to study another English course and to commence his studies in the Business course. He told me today and I accept that he never engaged in any studies in that course which was due to commence in November 2019. He told me that he never attended any classes in the course or engaged in any other form of tuition and accepted that his enrolment was consequently cancelled for unsatisfactory progress in May 2020.

31. So, what I have here is an applicant who on his own account had been here for almost 6 years by the time his visa was cancelled in May of 2020 without having completed any courses of study during that period.

32. He told me today and I accept that he had numerous part-time jobs during that period in the Hospitality sector. He said that he worked at the airport at some stage and for Harvey Norman on a part-time basis but the impression I get, and the finding I make, is that he was employed throughout that period doing various jobs including working in a restaurant.

33. The applicant told me today that he did not know he could go back to AIM to seek some advice and counselling regarding his enrolment in the Business course. As I said to him during his evidence it is impossible to accept that, given his experience, he would not have known that it was an option for him to go to AIM and seek a deferment of his studies in that course. I do not accept his denial that he did not know this. 

34. As I have already noted, this is a matter which the delegate specifically mentioned in his decision, and it is a matter which the applicant had not contradicted until he gave oral evidence today. I cannot accept his explanation in circumstances where he has been in Australia for almost 6 years, working for most of that time in various jobs and with a program which included Bachelor courses one of which he almost completed after 5 years of study. 

35. The proposition which he puts forward, that he had not known that he could seek a deferral of his studies in the Business course, strikes me as somewhat incredulous. In any event, he could have made enquiries to find out what his options were, and these included going back to the Department to see what steps could be taken to rectify his enrolment position. On his own account, he did not do that, nor did he take any other meaningful steps to regularise his situation.

36. He also referred in his oral evidence today to COVID, as he had done in his response to the NOICC. But the simple fact is that his enrolment in the Business course was due to commence on 18 November 2019, well before COVID had any impact on the education system in Australia, and he did not then begin studies in this course.

37. The applicant has not explained to me adequately or at all why it was that he was unable to engage in those studies at that time. All he said was that he had some problems with his work activity at that stage. He said that he was working in a restaurant in about November 2019, or at least that is my understanding of his evidence, and he was not happy because they were not paying him enough.

38. But that explanation goes nowhere. His failure to commence his studies in the Business course on time is a very telling factor in the circumstances of this case. This was not an innocent or otherwise reasonable mistake for which allowances can properly be made. The applicant was, or must be taken to have been, aware of the probable consequences of his own conduct.

39. It is not the Tribunal’s statutory function to give a student such as this one a second bite of the cherry if there is no good reason to do so. At the end of the day the applicant has given to me no satisfactory explanation for his prolonged absence from study. COVID, of itself, is not and never has been a reason for an international student not to engage in productive study. If a student wishes to mount a case in the Tribunal to the effect that COVID compromised an ability to study the Tribunal usually requires convincing medical evidence to this effect.

40. In this case, the applicant has simply asserted that he was unable to engage in productive studies because of COVID. When I asked him today whether he ever sought medical attention or assistance for the difficulties he said he was having, he told me that he had not.  This does not suggest to me that he was having difficulties which would have prevented him from engaging in productive study. This in the context of a case which involves a student who, on his own account, did not engage in productive studies before COVID had any impact in Australia.

41. It appears to me that in this case the applicant has made ambit claims as to why he could not study in the Business course but none of them go anywhere.

42. He said to me today also that after the COVID lockdowns he talked to his parents in August and September 2021, and they suggested that he go back to AIM and explain to them what had happened to see whether they would re-enrol him in the course. He went on to say that he did this, but it was to no avail. I have no evidence from either of his parents to corroborate him on this aspect and I have some hesitation in accepting at face value his evidence about this. He said they were angry with him, and it maybe they were given that he appears not to have informed them of his situation until it was too late.   

43. At the end of the day, it does not really matter if the applicant did speak to his parents in August or September 2021. Even if he did go back to AIM to seek re-enrolment at that stage it was too late. In my view, there are no extenuating circumstances which could adequately explain such an extensive period of non-enrolment. The applicant has not suggested that he did not know that condition 8202 required him to maintain enrolment in the Business course. It is simply a case of him making decisions and choices which he should not have made, and which he now regrets. 

44. During his evidence I suggested to him that even if he could not convince AIM to re-enrol him in the Business course he could have sought to enrol in other related vocational courses. He has not provided a satisfactory explanation as to why he has not taken any steps in this direction for a period of more than 3 years.

45. He also said that his parents had been quite angry with him when they found out that he had not completed the IT course and had not engaged in any studies in the Business course.  On his own account, his parents have paid a considerable sum of money, something in the order of $13,000, to enable to him to study the Business course. Whether they knew at the time that he had not finished the IT course, I cannot say. I would find it surprising that they would be prepared to find a further $13,000 if they knew he had not completed the IT course. But I have no evidence about this, and I simply cannot be confident of making any findings one way or the other. I do accept that his parents paid a considerable amount of money to get the applicant into the Business course. For reasons best known to himself, he has not acted responsibly towards them either.

46. His explanation that he did not study in the Business course because he had problems with his work is wholly unacceptable. It simply indicates to me that the applicant had other priorities as from in or about late 2019. 

47. The other evidence which the applicant gave me today was in response to my enquiry as to why he did not revisit the prospect of enrolment at another provider, perhaps in another bachelor course. He accepted that his parents would not help him any further. He mentioned that they had been assisting his younger brother with funds, but they were unwilling to help the applicant any longer. This evidence is plausible enough and I accept it, but it does not assist him.

48. In effect, this means that he would not have a third-party funder to enable him to pursue any further studies at the higher level. He told me today that he had saved about $10,000. This is not going to take him very far for a course like the one he was enrolled in at AIM, which had a total tuition fee of something in the order of $45,000. It seems to me unrealistic at best to engage in another course of this kind given the financial circumstances in which he now finds himself.

49. Turning then to the matters which the delegate considered in his decision, I too have no doubt that the purpose of the applicant’s travel to Australia was to study. He demonstrated this clearly enough in the early stages. The purpose of him coming out here was to study and in the early stages this is what he did but I do not accept this has been his purpose as from November 2019.

50. As noted earlier he did indicate today that he has completed all but one subject in the IT course, a fact which suggests that he was engaging in some productive study up until the time that course was due to be completed in July 2019. However, since then he has remained in breach of the condition, his last COE was cancelled on 5 May 2020, and he has not taken any active or meaningful steps to re-engage with his studies. Even if I were to accept that AIM was unwilling to take him back, he could and should have sought enrolment in a related vocational course or taken other steps to put himself in a position where he could resume his study.

51. In my experience this is an option which is well open to most international students, unless they have a condition attaching to their Bridging Visa which prevents study, which the applicant did not have. The delegate considered that there was in these circumstances no legitimate immigration purpose for the applicant to retain his visa. I share that view and give it significant weight in favour of cancelling the visa.

52. Regarding the extent of the applicant’s compliance with visa conditions, I also agree with what the delegate said about this. 8202 is a fundamental condition which the Tribunal and the Department expect international students to comply with unless they have a very good reason for not doing so. An extensive breach of 8202 left unexplained will almost invariably result in a cancellation of the visa and an affirmation of that decision by the Tribunal on review.

1. There are of course cases where for good reasons a breach of 8202 can be excused. But this case does not fall into that category. On any view, the extent of the non-compliance in this case was extensive and significant in the overall context of his academic history in Australia. I give this factor significant adverse weight.

2. As to the degree of hardship that may be caused to him and his parents, I accept there will be a degree of emotional hardship to the applicant if he must go home without having obtained an academic qualification in Australia. He has been here for a considerable period but, as I see it, the applicant has only himself to blame for this. 

3. I am unable to find that the applicant genuinely wants to continue his studies in Australia for legitimate carer related reasons. In any event it seems to me unrealistic that he would be able to engage in productive studies at the higher level. I accept there will be some emotional and psychological hardship to him in view of the cancellation and the fact that he will no longer have work rights in Australia, but these are matters which the applicant must bear responsibility for.

4. As to the financial hardship, I accept that his parents have invested heavily in his education here not only to enable him to enrol in the Business course but also in the earlier IT course, a course which he says he was never able to complete. How much that course cost his parents I have no idea, but it would have been relatively expensive. The applicant has not paused to fill in these gaps for me, and I have not had the time to investigate them, but I am prepared to infer that there has been a significant financial outlay by his parents and that they will consequently be disappointed at him having to return home empty-handed, as it were. Again, this is something for which he must bear responsibility.

5. I would give the hardship factor in this case some weight in his favour, but I do not regard it to be significant in the overall circumstances, let alone determinative.

6. So far as the circumstances in which the ground for cancellation arose, I have dealt with these. This is a case which involves an applicant not having engaged in productive or completed studies well before COVID impacted Australia. He has not explained to me adequately or at all why he was unable to engage with his studies, and I do not accept that the difficulties he was having with his work activities would have prevented him from engaging in productive studies in the Business course in a timely manner.

7. Really, this is a case in which the applicant has not paused to explain to me why he did not study the Business course. It appears to me to be a case which, on the evidence, involves nothing more than an applicant who simply had other priorities. 

8. The applicant spent almost 5 years in the IT course and on his own case was unable to complete that course because of one subject. One would have thought that he would have embraced the opportunity which the Department gave to him when he was granted his third Student visa in October 2019 to engage with the Business course. But what does he do?  Certainly nothing in the way of productive study, and this for reasons best known to himself. 

9. There is nothing in these circumstances which ameliorates or improves his position. In my view, they can only be given significant weight in favour of cancellation.

10. So far as the other matters are concerned, they are referred to by the delegate in the decision and I agree with what he has said about them and with the weight which he attributed to them. That said, I do think he was rather generous to the applicant in what he said about the legal consequences of a cancellation which seem to me to be a matter which the legislation makes explicit provision for.

11. In any event, whatever weight can be attributed to those consequences in this case, it cannot alter the eventual outcome.  

    Summary and conclusion

12. Given that I am here dealing with an extensive and largely unexplained breach of a fundamental condition, the Tribunal has therefore no real alternative in this case but to find that the visa should be cancelled.

    DECISION

13. The Tribunal affirms the decision under review.

    Michael Bradford
    Member