Le (Migration)

[2018] AATA 3537

Le (Migration) [2018] AATA 3537 (6 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tuan Anh Le

CASE NUMBER:  1621143

HOME AFFAIRS REFERENCE(S):           BCC2016/3118140

MEMBER:Brendan Darcy

DATE:6 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 06 August 2018 at 1:59pm

CATCHWORDS

Migration – Cancellation – Student (Temporary)(Class TU) – Subclass 500 (Student) – Breach of condition – Failure to maintain course enrolment – Personal difficulties –No evidence of claimed natural disaster in home town – Breached ‘no work’ condition – Working to support family – Practice and procedure – Non-attendance at hearing – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), r 1.40A Schedule 2 cls 573.231, 573.223, 573.111 Schedule 8 condition 8202, 8516

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 December 2016 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(b) on the basis that the applicant was not compliant with condition 8516 imposed on the applicant’s student visa at the time of its grant and that the grounds for cancelling the visa outweighed the grounds for not cancelling 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. On 17 July 2018, the applicant was invited to attend a scheduled hearing for 2 August 2018 at 10.30 am at the Tribunal’s Melbourne offices. Two SMS regarding the hearing’s scheduled date was sent to the applicant’s mobile phone on 26 July 2018 and 1 August 2018. Neither a response to the invitation to attend the scheduled hearing nor any other submissions had been forwarded to the Tribunal prior to the date of the scheduled hearing.

4. The applicant did not appear before the Tribunal on give evidence and present arguments by 10.30 am. The hearing was not closed for a further half an hour to provide the applicant additional time to attend or to request a postponement.  The Tribunal waited more than four days for any further submissions or requests before writing of this decision.

5. At the time of writing this decision, the Tribunal has not received any further correspondence, including any medical certificates, regarding the applicant’s non-attendance or his visa cancellation more generally. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to proceed in its decision-making regarding this review application without taking any further action to enable the applicant to appear before it.

6. No authorized recipient or representative had ever been appointed as part of this review application.

7. 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

8. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

9. On 24 December 2014, the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8516 attached.

10. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8516 was attached to the applicant’s visa.

11. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of a criterion requiring the applicant to be enrolled, it has been held that this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

12. In the present case the applicant was required to meet, among other criteria, subclause 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994.

13. Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI14/015.

14. The courses specified by the Minister in instrument IMMI14/015 for this subclass 573 visa under review (granted after  IMMI12/037 had been in effect) are:

    ·     Diploma (Higher Education)

    ·     Advanced Diploma (Higher Education)

    ·     Bachelor Degree Graduate Certificate (Higher Education)

    ·     Graduate Diploma (Higher Education); and

    ·     Associate Degree Masters by Coursework.

15. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor degree, Master’s degree by coursework or, for visa applications made on or after 12 November 2012, an advanced diploma in the higher education sector: cl.573.111.

16. According to the decision record submitted by the applicant when his review application had been lodged, the applicant was granted a class TU subclass 573 on 24 December 2014; that his visa stay period extended to for two years, eight months and six days from the date of grant; and that he has since only completed two registered courses. It also mentions that the applicant did not study or hold a relevant COE between 29 July 2015 and 21 November 2016.

17. Provider Registration and International Students Management System (PRISMS) records indicate the applicant had been originally enrolled in a package of courses that included English for Tertiary Studies at the South Australian College of English and a Master of Accounting English at Flinders University (South Australia). It indicates that the applicant finished his English language course work in 5 July 2015 and that his enrolment in  in a Master of Accounting ended on 5 August 2015 while the applicant enrolled a new package of course work which including a new English for Tertiary Studies, a Certificate IV in EAL and a Certificate III in Painting and Decorating (but not any further higher education degrees) at Barkly Institute.  

18. The Department sent by email a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s student visa on 16 November 2016.

19. On 22 November 2016, the applicant emailed his response to the NOICC. The written response included a written letter from the applicant in which he did not dispute the grounds for cancellation.  

20. A delegate on behalf of the Minister proceeded to cancel the applicant’s visa on 8 December 2016. The delegate noted that he applicant had not been in enrolled in a higher education registered course for a period of one year, four months and three days from 25 September 2015. (However the Tribunal finds that the Department was in error in the regard as the last day of enrolment was 5 August 2018 according to PRISMS)

21. The applicant applied to have that cancellation decision reviewed by the Tribunal with the decision record attached on 12 December 2016.

22. Based on the information before it, the Tribunal finds that the applicant had been not been enrolled in a Bachelor or Master degrees between 6 August 2015 and 8 December 2016 (the date of cancellation).  

23. Based on the information above, the Tribunal finds that while the applicant while holding a subclass 573 student visa did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that he breached condition 8516 of his student visa.

24. For these reasons, 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 DISCRETION MATTERS

25. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

26. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

    Consideration of the discretion to cancel the visa

27. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

28. Attached to the that applicant’s NOICC was a letter which provided reasons as to this non-compliance with condition 8516 were due to exceptional circumstances beyond his control.

    "I would like to write this letter to explain my current situation.

    I came to Australia to study English at SAGE in Melbourne then Master at Flinders University in Adelaide. When I first arrived in Australia to study I was in awe of the environment and the quality of education provided, from then I knew I made the right decision. While studying my final English course to get directly into Master, I was under immense pressure from various personal problems, which had a negative effect on my studies that is why I could not passed the English course. Therefore I have to extend to study more English at SACE, however, Flinders University did not except to defer the Master course and they told me to get refund. Then I needed a change of environment of studying.

    That time is the most hardship time for me in my life I think, I got all problems finance, study, family, it was so stressful. My life took a turn for the worst when Typhoon hit Vietnam in July 2015. I received tragic news from relatives that mass flooding in Vietnam had destroyed my families business and home (I already submitted the confirmation in the application to you). Thankfully no one died however my parents became very ill due to all the stress and terrible living conditions caused by the flood. This had a great impact to my education, as all I could think about was my family back in Vietnam and how hard they were struggling. I wanted to go back home and help them with anything I could but I knew there was not much I could do in Vietnam. Furthermore, Flinders University did not accepted to defer the course so I felt very bad, that is why I changed to Barkly Institute. However, my family could not afford for me to study anymore. Contemplating the options I had, I made a rash decision and stop studying to look for and earn money in order to send back and help my family. Looking back I know this was not a smart decision but in my circumstances I believe I had to no other choice.

    After some months my parent's health gradually improved. Our home and business was still under repairs but recovering slightly with help. With life returning back to normal my family encouraged me to continue with my education and stop worrying about them. Through this experience I realized that to be succeed in my career, not only is the knowledge from school important, but also the knowledge of life, which I have learnt a lot in Australia and from the tragic situation involving my family. As a result I decided to study Certificate III in Painting & Decorating, which is what I really love to play since young to paint our house wall, I felt so relaxing and interesting when I do so and also it will help my work when I am back to Vietnam to develop family's business, also that course is affordable.

    My intension is still studying the Master course as this is an important skill and knowledge, which I could use to help family's business develop. I have asked some University already but I still wait for my family to prepare money to send to me to apply for the course.

    I hope you can understand the problems I faced which led me to this situation and the actions I chose. If you could kindly allow me another chance to study and complete my qualification in Australia I will be forever grateful.

    Thank you so much for your understanding."

29. The response also included an email from Flinders Uncivility to the applicant advising him they will not be proceeding with his acceptance to a course at that university and how he can request a refund of his fees (no attachments); a letter to the People’s Committee of Nghi Thinh commune from the applicant’s mother that due to her financial situation she suspended her son’s learning in Australia and that he return to Vietnam as soon as possible; and a medical examination for ‘Le Thi Phuong’.

30. The applicant did not attend the hearing or provide any written reasons for his non-compliance to the Tribunal. Neither did the applicant provide any reasons for his non-attendance.

31. Accordingly the Tribunal is required to rely on the information the applicant provided the Department in the context of the applicant’s non-responsiveness to the Tribunal’s invitation to provide any oral, written or documentary evidence as the reasons his visa should not be cancelled.

32. The Tribunal acknowledges that the applicant did complete some coursework, namely do to with strengthening his English language skills. However the applicant enrolled into coursework which was not directly related to a Master of Accounting, namely a Certificate III in Painting and Decorating, indicating the applicant wanted to complete vocational education for a trade and not to pursue a career in the accounting or actuarial professions. The applicant vaguely claimed to the Department he wished to complete a higher education degree to assist his family’s business but did not provide any further information to the Tribunal despite being given the opportunity to do so. Furthermore, the Tribunal notes that the applicant has not departed Australia although he provided evidence that the applicant’s mother wished the applicant to return due to a lack of tuition fees while, it was claimed, her family experienced the devastating effects of a natural disaster. As the applicant has not provided any demonstrated pathway towards completing a higher education degree or qualification, the Tribunal does not accept the applicant is a genuine student whose purpose compatible with holding a subclass 573 visa for higher education. In the context of the applicant’s non-appearance at the Tribunal, his behaviour indicates to the Tribunal the applicant does not have any credible reasons relating to ongoing study and that he is determined to remain in Australia regardless of the conditions imposed on him if he were granted a student visa by remitting this decision in his favour.  Accordingly, the Tribunal finds the applicant is not a genuine student and places a significant weight on this in having the applicant’s student visa remain cancelled.

33. The Tribunal finds that the extent of the non-compliance with 8516 to be significant and places only some weight in his favour that there is no evidence that applicant had not been non-compliant with the other conditions imposed on his visa, although the delegate reasonably suspected the applicant may have breach the ‘no work’ conditions imposed on his visa as the applicant admitted to working hard to assist his family back in Vietnam.

34. In this case, the applicant has presented to the Department weakly written arguments with some documentary evidence to the Department not to cancel his visa due to the exceptional or extenuating circumstances his Master’s degree ceased. The applicant then claimed he was under immense personal problems which had a negative effect on his studies and he could not complete his English coursework at the time. Those personal circumstances included his family’s business and home being devastated by flooding in Vietnam in July 2015; his parents’ illness due to stress and deteriorating living standards; and his own stress as he worried about his family back in Vietnam. As the applicant struggled with his English language coursework, he requested a deferment of his Master by Flinders University so he could complete the required English language coursework. However this deferment was denied. As the delegate pointed out, had the applicant been genuinely concerned about his family he would have departed, at least temporarily, to assist his parents, given the statement by the applicant’s mother indicated the family had withdrawn financial support and expected the applicant to return. Instead, the applicant remained in Australia and claimed he worked hard to assist his parents with remittances. At no stage did the applicant’s written reasons account for the long period of his non-compliance to the Department and he did not provide any additional information to the Tribunal at all, expected to vaguely mentioned that the situations had vaguely improved by the time of the NOICC response,. However, when considering the significance of his non-compliance with condition 8516, the applicant had ample opportunity to rectify the matter prior to the issuing of the NOICC if the situation had genuinely improved. Furthermore, PRISMS indicate the applicant ceased his studies with the ELICOS provider due to non-attendance. Had the applicant been genuinely affected by the circumstances beyond his control, it was open to him seek a deferment of his English language studies which would have had the effect of deferring his higher education enrolment. Instead Flinders University considered the applicant did not meet the condition of their own offer which led to the cancellation of his higher education enrolment. That is, there does not appear to be any credible evidence about natural disasters and negative financial problems as extenuating circumstances. For this reasons, it does not to accept the applicant’s written reasons or the statement provided by his mother to genuinely reflect the applicant’s actual circumstances at the time of non-compliance. Neither did the applicant provide any further information to the Tribunal, including oral testimony at a scheduled hearing, to elaborate on this. Had the applicant also attended it would have enquired whether any medical evidence of the past stress or mental health problems existed or to elaborate on the specific significance of the medical evidence submitted. However the applicant did not.  For these reasons and with particular emphasis on the applicant’s lack of responsiveness during this review application, the Tribunal does not accept the applicant’s claimed reasons that he experienced exceptional or extenuating circumstances beyond his control that led to his non-compliance with 8516 and that the applicant had knowingly contrived the evidence for migration purposes unrelated to studies. Accordingly, the Tribunal places no weight on the claimed extenuating circumstances leading to his non-compliance in favour of the visa not remaining cancelled.

35. With regards to the degree of hardship the applicant might face, the applicant did not provide any written or oral reasons to the Tribunal to elaborate on his matter. However in the applicant’s written response to the NOICC, he indicated that he would face some stress and it was intention to complete a higher education degree to assist in his family’s business if his visa remained cancelled. Taking all these plausible aspects into account, the Tribunal accept that the applicant may suffer some hardship if the visa remains cancelled; nevertheless it finds on the evidence that he has not demonstrated any significant hardships. The Tribunal gives these factors little weight towards the visa not being cancelled.

1. According to the decision record, the delegate gave some weight in favour of the applicant having been co-operative in providing informational to the Department when it was requested of him. The Tribunal also provides some weight in the favour of the applicant based on the applicant’s past behaviour towards the Department.

2. However, in the context of the Tribunal’s earlier findings that applicant is not a genuine student and the lack of credibility regarding exceptional or extenuating circumstances, it places considerable weight on the applicant’s non-responsiveness to give evidence and provide evidence in favour of the visa remaining cancelled as it indicative of a non-citizen in Australia likely to breach further conditions of other visas if they were to be granted or to disengage with the Department.

3. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited legal opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

4. There is no evidence before the Tribunal that this has any children or other dependents relevant to s.140 and it gives this factor no weight.

5. As the applicant has not raised any personal circumstances relevant to international obligations and based on his non-appearance at the scheduled hearing, there is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

   Conclusions

6. Having found that the applicant has not complied with a condition of the visa as he was not enrolled in an eligible higher education degree, the Tribunal must consider whether to exercise its discretion to cancel the visa.

7. As outlined above in its consideration of discretionary matters, the degree of this non-compliance with condition 8516 was significant and that there were no credible reasons provided regarding extenuating circumstances beyond the applicant’s control leading to that non-compliance. It also is not satisfied the applicant is a genuine student or that he will uphold the conditions imposed on any prospective student visa if this visa remains not cancelled.

8. Overall, those factors in favour of the applicant’s visa not being cancelled were not as significant when weighing up those countervailing factors in favour of the visa remaining cancelled or reinstated.

9. In considering the applicant’s circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

    Brendan Darcy
    Member