LE (MIGRATION)

[2018] AATA 357

LE (MIGRATION) [2018] AATA 357 (19 JANUARY 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xuan Nhat Le

CASE NUMBER:  1704081

DIBP REFERENCE(S):  BCC2017/14472

MEMBER:Susan Trotter

DATE:19 January 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 19 January 2018 at 4:20pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) - Requirement to be enrolled in registered course – Applicant not enrolled in a registered course for a period of time – Ground for cancellation exists – Consideration of discretion to cancel – Failure to remain in contact with education providers – Inadequate or misleading advise from education agents – Circumstances beyond applicant’s control – Genuine intention to study

LEGISLATION
Migration Act 1958, s 116(1)(b), 189
Migration Regulations 1994, Schedule 8, 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 March 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 applicant is a citizen of Vietnam and was granted the visa on 1 April 2014 to study in Australia.

3. Following the sending of a Notice of Intention to Consider Cancellation (NOICC) of the visa on 23 February 2017, to which the applicant responded on 28 February 2017, the delegate cancelled the visa. The visa was cancelled under s.116(1)(b) of the Act on the basis that the applicant had not complied with a condition of the visa, namely he had not been enrolled in a registered course of study since 2 June 2016 (condition 8202(2)(a) of the Migration Regulations 1994 (the Regulations)).

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 7 March 2017.

5. The applicant appeared before the Tribunal on 21 November 2017 to give evidence and present arguments. The Tribunal also heard evidence from Ms Bich Van Tran, an employee of the applicant’s education agent, in person.

6. The Tribunal was assisted by an interpreter in the Vietnamese and English languages.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

ISSUES

1. 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) which applies if a visa holder has not complied with a condition of the visa.

2. In this instance condition 8202 was attached to the applicant’s visa.

3. Condition 8202 of Schedule 8 to the Regulations, 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).

1. If satisfied that a 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.

2. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department of Immigration and Border Protection’s (the Department) Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ including:

(a)  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;

(b)  The extent of compliance with visa conditions;

(c)  Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members;

(d)  Circumstances in which ground of cancellation arose. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

(e)  Past and present conduct of the visa holder towards the Department;

(f)    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;

(g)  Whether there would be consequential cancellations under s.140;

(h)  Whether any international obligations would be breached as a result of the cancellation; and

1. Any other relevant matters.

1. It follows that the issues to be determined by the Tribunal are:

(a)  Does the ground for cancellation exist? And, if so,

(b)  Should the discretion to cancel the visa be exercised having regard to all the relevant circumstances?

CONSIDERATION

1. The applicant’s and his education agent’s statements before the Department and the Tribunal (which included copies of various documents referred to) included as follows:

(a)  Statement in 28 February 2017 response to NOICC

My name is Xuan Nhat, Le. I am 21 years old and today I am writing this statement o sincerely explain my study and activities ever since I first arrived in Australia til now. Finishing high school in Viet Nam, I came to Australia with great excitement, ready to take on new challenges including studying in an entirely new environment with a different language from my mother tongue as well as living on my own for the first time. Those seem scary but also very interest. I started studying 30-week General English at Tafe on 21/07/2014 then went on studying 12-week EAP on 22/03/2015 (attachment 1). I complete the course at Intermediate level and my overall attendance was 79%, which is a little bit below 80% (attachment 1). However, the results could not get me progressed to next level. I was so sad because I spent too much time to study but still failed. I decided to go back to Vietnam for holiday (attachment 2). Due to my unawareness of the right procedure, I forgot to check my email and thought that the school would automatically process me to repeat the course. However, when I came back, it was too late already because they had cancelled the rest of the CoEs of mine. I was speechless as I did not know what to do next. I was then advised by my agent that I should enrol in another course as soon as possible. I followed their instruction and registered to ILSC with a package of Certificate II in Customer Contact, Certificate III in Business, Certificate IV in International Trade and Diploma of International Business. After I got my CoEs and everything, I started the Certificate II in Customer Contact. When I have studied for a while, nearly finished my course, I could not pass again. However, I did not aware this. The school contacted me several times by email. Then I released the problem was that the emails went to my “junk mail” box, that is why I couldn’t see them all. The result was my CoEs at ILSC got cancelled in June. I understand that it is my responsibility to check my emails, yet it was my carelessness that has resulted in such a problem. I mean everyone makes a mistake in their life and this is one of my mistakes I made during my young twenties due to my obliviousness. I am writing this statement to sincerely ask for a second chance to correct my mistakes. In June, I tried to apply to another education provider which was complying with my visa (573). It took me a few months to finally get the offer letter. I am applying to study a Bachelor of Business – Marketing at Holmes Institute as this majos first my personality which is creative thinking. I did some research about the course at Holmes and found this:

Year 1  Year 2  Year 3

Interpersonal & Electronic     Marketing Research                Integrated Business Management
Communication  Project

Information Technology for    Services Marketing &              E-Business Applications
  Relationship Marketing

Decision Making &            Comparative business Ethics    Marketing Communications
Problem Solving                & Social Responsibility            

Introduction to Accounting    Buyer Behaviour          Supply & Distribution Chain
  Management

Economics & International  Product & Service Planning and
Trade  Management

Managing people &           + 2 Electives  + 2 Electives
Organisations  

Marketing &
Entrepreneurship

The course I am studying at Holmes is a package of English and Bachelor of Business. I actually commenced my English course for two weeks in November 2016, yet I was asked to leave as I did not have Letter of Release from Griffith University (GU), I applied for the letter of release at GU and was asked for more documents, I sent them back to the university and have been waiting for the outcome ever since. Please understand for my situation as I really want to commence my course at Holmes, yet I cannot even go to school as I have not had the document they need. I will go to GU campus to meet and request directly to them so that I can get the LoR at the earliest possible. I even paid for the tuition fee back in November 2016, I sincerely want to commence and finish my study as so as possible so that I can go back to Vietnam with some qualification. I understand my actions in the past were reckless, but now as I am more mature, I would like to do something for myself and get my life going. Please give me a second chance to right my mistakes.

Best regards,

Xuan Nhat, LE

(sic)

(b)  17 November 2017 statement

Dear Officer,

My name is Le Xuan Nhat, (DOB 28/09/1995, Department file number BCC2017/14472). I received the Notification of Cancellation of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa from DIBP on 03 March 2017. As a consequence, I am writing this letter to demonstrate why I am a genuine student and my visa should not be cancelled.

ØMy activities prior to coming to Australia

I was born in Phu Tho city in Vietnam in 1995. When I graduated from high school in 2013, my parents decided to send me overseas for my higher education. Although many people think that Vietnam is still a developing country, job positions are actually very competitive in city government departments and in state-owned or foreign invested enterprises. Both of my parents work in management in a state-owned enterprise and have good education backgrounds. My father is a civil engineer and my mother is an accountant. They both have bachelor degrees and wanted me to have an even better education. They believe that to get a good job in Vietnam today, I will need an overseas bachelor qualification. As overseas education is getting more and more popular in Vietnam, my parents wanted me to go to the US or Australia for my degree. As Australia seems to be a safer country compared to the US, and that it is closer to Vietnam geographically, I decided to pursue my education in Australia. Moreover, one of my friends was coming to Australia too, I believed it was better for me to have a company, so we can take care of each other.

Since my English abilities were very poor, I had to complete 30 weeks of General English and 12 weeks of English for Academic Purposes at TAFE, followed by Certificate IV in Marketing and Diploma of Marketing, in order to pathway to Griffith University for the Bachelor of Business program.

ØMy original study in Australia and my activities until now

After coming to Australia in 2014, I realized that studying overseas was way harder than I imagined. It was my first time living alone in a new country. Adjusting to a new culture and surrounding language was difficult enough, not to mention learning how to live alone and to take care of myself. I had never lived out of home previously. It took me a lot of time to adjust and I couldn’t fully focus on my studies. Moreover, I encountered various problems in adjusting to the Australian teaching style and assessment methods. I realized the teachers here don’t spoon-feed knowledge to us and don’t provide a lot of help like the teachers in Vietnam. It’s very difficult for me to think critically and logically as required to complete the tasks. With the language barriers, unfamiliar teaching methods, and difficulties of living alone, I found the language program like a torture to me. Although I already put in my full effort and managed to complete the program, I failed to pathway into Certificate IV in Marketing.

When I first came to Australia for my study, I was only 18 and I appointed an education agent in Vietnam to handle my application and visa processing. I was not familiar with the policies and action that need to be taken. Moreover, my agent promised me that they would take care of me even after I arrived in Australia. I thought that I could trust my agent and rely on them with my visa processing and other paperwork. Since all the administrative contact with TAFE was made through my agent previous, I had no idea what I had to do. I genuinely believed that TAFE would contact my education agent to make arrangements on my study plan, and for me to repeat the program.

Moreover, I was extremely frustrated about my academic achievements. Since my parents are very strict on me and had high expectations on me, I was too scared to tell them about my situation. I also lost confidence in myself and started to doubt if I could ever face the challenges in my original study plan, and whether I was capable of studying overseas myself. Since I was under a lot of pressure and was very homesick, I went back to Vietnam to see my family. After I came back to Australia, I went back to TAFE and realized that all of my Coe’s with TAFE were cancelled, and I couldn’t go back to study again. I was terrified and was completely lost about my path.

A friend of mine introduced me to an education agent and they informed me that I should enroll in a course as soon as possible. I didn’t know where else I could go other than TAFE, therefore, I followed the agent’s advice and entered ILSC for with a package of Certificate II in Customer Contact, Certificate III in Business, Certificate IV in International Trade and Diploma of International Business with my friend. Since I was completely frustrated about English courses, I believed that this path would be more practical and could help me to enter university sooner. I was led to believe that I would be able to enter university as previously planned after the diploma program.

In May 2016, I was introduced to another education agent iae Edu Net Brisbane. Since I completed certificate II at that time, I figured it was time to ask more information about my future path to get back to university. It was until then that I realised the programs that I was enrolled in cannot pathway to Griffith University. I felt like it was the end of the world for me. I felt very stupid that I was fooled by my previous agent and was led to believe that I could enter university after ILSC. I had wasted so much time and money and all I wanted was to enter university as soon as possible. It has always been my goal to complete my bachelor degree and to return to my home country. Now everything was shattered. I was extremely worried about my future. After a long conversation with the agent, iae applied for Holmes Institute for me to commence General English, and pathway to Diploma of Leadership and Management, followed by Bachelor of Business. I agreed that it was a more suitable path for me, and I wanted to commence immediately in order to catch up on the time I wasted at ILSC.

Therefore, I stopped attending ILSC and focused on preparing myself for the program at Holmes. Since I had not attended an English program for a long time, I wanted to self-study to be fully prepared prior to course commencement. When I was all ready to get back on track to earn my degree, life didn’t go the way I wanted it to.

I had no idea what happened in between, it took me much longer than I expected to receive the offer letter from Holmes Institute. I tried to chase my agent to follow up multiple times, however, they informed me that it was in progress. I realised that I could not just stay home, therefore, I tried to go back to ILSC while waiting for my offer from Holmes. Little did I know that I failed Certificate II in Customer Contact and ILSC actually cancelled all my programs. It was until then that I realised all emails went into my “junk mail” and I was never aware of it.

I felt very unaccepted in this country. I had been trying so hard to learn everything and to adapt to the Australian policies and rules, however, I was still unaccepted in each and every school. All I wanted was a degree and I never expected to be this far from my goal. Since I didn’t have any other option, I had no choice but to study English at home myself, and to keep chasing my agent for my offer from Holmes.

Once I received the offer, I paid for the program immediately. However, it was until I started the English program for two weeks that the institute asked me to leave in the middle because I could not provide a letter of release from Griffith University. It wasn’t until then that I realised I had to provide a letter of release. Since ILSC never asked for a release letter when I first transferred from TAFE, I never expected that I had to obtain such document. I didn’t even know that such document exists. I was not informed by anyone about the document requirement. I felt very embarrassed that the administrative staff from Holmes pulled me out of the classroom in the middle of the class, in front of every student. From then, I wasn’t allowed to go back. I tried every hard to obtain the letter from TAFE and Griffith, but I wasn’t able to get the outcome I wanted.

After waiting for months, my agent finally informed me that they decided to get a refund for me. They tried to apply for every other possible university for me but due to my complicated history, they couldn’t get a positive outcome. Since my English abilities were still very low, my agent recommended me to enter HETC for Certificate II and Certificate III in Spoken and Written English, followed by Diploma of Business. Since HETC partners with Griffith University, I would be able to apply for credit transfer to enter Bachelor of Business at Griffith after the diploma program at HETC.

I have completed the certificate II in Spoken and Written English and finally feel that it is right for me to study in Australia. I have finally become much more confident about my study, and believe that I can complete my degree at Griffith as planned, and to return to my home country.

ØI received the visa cancellation from DIBP, which did not fully reflect my situation

In March 2017, I received visa cancellation notification from the Department. From the cancellation letter, I believe that how DIBP comprehended my situation was incorrect, and I would like to take this opportunity to clarify myself.

1. The letter stated that when I failed the English program at TAFE, I failed to seek any assistance from the education provider, and did not even check my emails. First of all, my English abilities were extremely low when I first came to Australia. Although I attended orientation at the start of the program, I did not fully understand the content at the time and was unaware of the procedures and assistance provided by the institute. After months of English studies, although my English abilities improved, I was still uncomfortable to speak to the staff at reception directly about my issues. I was too nervous to express myself and I was unsure about how to describe my situation clearly. Moreover, all the contacts about my courses and visa were made between TAFE and my education agent in Vietnam previously. I had no knowledge on the process and I was not aware how to handle the problem. I also genuinely believed that TAFE would make contacts with my education agent, and my agent would take care of my case as they promised. Therefore, I never expected my email to be that important. It was mainly due to my lack of knowledge in the procedures and policies in Australian Institutes.

1. The cancellation letter also stated that if I had present at ILSC on the Certificate III in Business commencement date, my course may not have been cancelled at ILSC. I only stopped attending ILSC because I genuinely believed that I was going to commence Holmes soon. I believed that since I was changing to a new provider, I should stop attending ILSC. Moreover, since I was aware of my low English abilities, I wanted to focus on preparing myself for the English Program at Holmes prior to commencement. I wanted to self-study to be fully prepared, so I would not be overwhelmed by the program when I start. After everything that happened, I had very low self-esteem and I had no confidence in my abilities. I was very anxious about changing to a new environment, not to mention studying an English course, which I failed when I first attended TAFE. Therefore, I wanted to equip myself before going into a new classroom and to be mentally prepared for the course. Moreover, since all notification emails from ILSC went into my “junk mail” I was completely unaware that the emails even existed in my mailbox.

2. The letter stated that my attitude towards the need to maintain my enrolment seems to be very relaxed and not treated with any sense of urgency. I believe it is unfair for DIBP to make such judgement merely based on the response to the NOICC letter. First of all, I believe DIBP should consider the fact that I never stopped to seek help from education agents and to enrol in institutes to get back to the right track. After I failed to continue my program at TAFE, I asked for help from an education agent, who enrolled me into ILSC. Moreover, towards to end of my certificate II at ILSC, I seek assistance from iae Edu Net to obtain information about pathways to universities. It was completely out of my own control that I was not able to be enrolled at Holmes any sooner. I was extremely worried and nervous myself since it was my academic career and visa that were at stake. However, since I had no knowledge and experience in this matter, I had no choice but to solely rely on my agent. I did follow up frequently about the process and tried to study by myself while I was waiting. I wish that you could reconsider the misjudgment of DIBP regarding my attitude.

3. The cancellation letter also stated that I have not been enrolled in a registered course of study since 2 June 2016. I believe it is unfair for DIBP to consider this statement as part of the reason for my visa cancellation. First of all, I tried to apply for Holmes Institute through iae Edu Net prior to the termination of my courses at ILSC. It was an unfortunate incident that I was not able to receive an offer letter until months later. Moreover, I made payment once I received the offer, and started attending the English Program at Holmes from November 2016. It was Holmes’ decision to terminate my study due to the lack of release letter, which I had no knowledge about until then. It was never my intention to not to be enrolled in a registered course, however, with the administration and bureaucracy involved, it was beyond my control that I could not continue my studies.

ØMy only intention to stay in Australia is to complete my study

I am a student from a middle-class family in Vietnam. In Vietnam, I was well-taken care of and I never had to worry about any chores at home. I was perfectly happy in my home country and everything fell into my laps when I wanted it. There was no reason for me to be in Australia if it was not to achieve an overseas qualification to take home. Since 2014, I have encountered many failures that never happened to me before. If I were not aiming to achieve a degree in Australia, I could have gone back to my country and to escape from all the stress and embarrassments. In the past few years, I not only was rejected by multiple institutes and was extremely lost and lonely about life, but also was pulled out of class in front of the crowd. If I were in Vietnam with my parents, I would never have to suffer from this pain and humiliation. I have to complete my studies in Australia for the following reasons and I hope you could take it into consideration.

1. It is impossible for me to get into universities in Vietnam now. To enter an undergraduate program in Vietnam, students must participate in the University entrance examination. It is one of the hardest exams in the world. Every year, only 50% of participants can successfully enter their desired undergraduate education in Vietnam. Since I have been away from Vietnam since 2014, it would take years for me to adjust to the Vietnamese education system, and to complete the exam. Moreover, the exam is held in June every year, it is impossible for me to complete the exam now. Furthermore, there have been tremendous changes in the exam structure in the past few years, I might never be able to adjust to the new system with the knowledge I had previously. If I cannot continue my study in Australia now, I might never be able to study in tertiary education anymore.

2. I have suffered so much in Australia since 2014. If I cannot achieve a degree due to my visa being cancelled, I would not know what to do with my life anymore. Since my parents put all their hope on me, I cannot imagine how heart-broken they would be or how they would see me as a son anymore. They have invested so much money in my education and to send me to Australia, I cannot disappoint them. Moreover, since my parents have good connections and a reputation in my hometown, they would be laughed at by the others because of me. It would be shameful for them to face the people from our extended family or from business connections. My parents are old already, I am extremely worried if they could bear the embarrassment and still live a normal life.

3. I have been working extremely hard to work towards a degree since 2014. I have contributed plenty of time and effort to learn English and to prepare myself for entering university in Australia. I have already spent three years of my life as a young adult to work towards this goal. The time and effort I spent meant a lot to me. If I cannot continue my study in Australia now, everything would be wasted, and I basically spent the past three years of hard work for nothing. I came to Australia with high school as my highest qualification, and if I have to return home now, my highest qualification would still be high school. I would never be able to accept the result. It would leave an inerasable mark in my life and affect my future forever.

4. I am from a traditional family in Vietnam. As the only son in my family, my parents and sister rely their future on me. Since my parents are well connected in my hometown, we would suffer from intolerable humiliation and pressure from the traditional values if I fail. I have brought enough troubles to my parents due to my past failures, I could not imagine how badly they would be affected if they had to bear more pain because of me.

The past three years have been the toughest years of my entire life. After everything that happened, all I want is to complete my degree soon and to return to my comfortable home to be with my family. As the only son in my family, my traditional parents wish for me to be back in Vietnam as soon as possible to be reunited with them. I have no intention to stay in Australia after my study. Moreover, with my parents’ connections in the business field, they can easily introduce me to a prosperous job. Since the job market in government and enterprises in Vietnam is very competitive, I have to have an overseas degree as a ticket for my parents to introduce me to a good job.

After many twisted paths, I have finally found my way back to university. I sincerely hope that you could consider DIBP’s misunderstanding in my situation, my genuineness as a student, and the importance of the education to my life, and provide me with a visa decision that I truly deserve.

Thank you for your time and consideration.

Sincerely,

Le Xuan Nhat

(sic)

(c)  Letter from iae Edu Net dated 20 November 2017

This letter is to confirm the following facts in relation to our client, Le Xuan Nhat (DoB 28/09/1995):

1. Le Xuan Nhat signed the application form for courses at Holmes Institute on 21/07/2016

2. We lodged the application to Holmes Institute on 25/07/2016

3. We received the offer letters from Holmes Institute on 04/11/2016

4. Le Xuan Nhat also applied Diploma of Business course at Kaplan Business School on 13/03/2017 through us

5. Kaplan Business School refused his application on 17/03/2017

6. Since December 2016, our company had started to approach Holmes Institute for refund. On 31/05/2017, Holmes Institute responded that the refund request has been approved and we received money on 06/06/2017. Afterward, we transferred the full amount to Le Xuan Nhat immediately.

7. The applicant’s evidence to the Tribunal relevantly included as follows:

(a)  The applicant showed the Tribunal a large bundle of documents which he said were the assignments he completed during the time he was not studying. They were assignments completed by himself because his English was weak and he wanted to improve further. They were not assignments completed as part of any course.

(b)  When he first arrived in Australia he had a Confirmation of Enrolment for a general English course at Southport, then he was to do a Certificate IV in Marketing, then a Diploma of Marketing and then a Bachelor of Business. This was all arranged before he left Vietnam. The education agent who assisted made a promise that they would take care of him from the beginning to the end and his family paid them. He needs to have a good degree, preferably from overseas, to get a good job. His family are all educated and it is expected that he will be too.

(c)  He understood that the conditions of his student visa included that he could only work for a certain number of hours and also that he had to be enrolled to study.

(d)  He completed his English courses (in two parts). However, he could not start the Certificate IV in Marketing. It was the first time he was away from home. He was learning to live by himself. His English was not good. He had to reorganise all of his time to study. The way the teachers taught here was very different. He was left to study on his own a lot. He did not pass English for Academic Purposes. He felt very embarrassed and stressed, particularly because his parents spent a lot of money. He went back to Vietnam in July 2015 for a holiday. He thought the school would automatically process him to repeat the course. The agent promised she would take care of everything including the documents and the emails but when he came back from Vietnam he found out that his enrolments had all been cancelled. The old agent denied all responsibility so he had to arrange a new agent.

(e)  He was advised by his agent to enrol in another course as soon as possible. He registered with ILSC for a package of Certificate II in Customer Contact, a Certificate IIII in Business and a Certificate IV in International Trade and a Diploma of International Business. He failed the Certificate II in Customer Contact and ILSC cancelled his enrolment. However, he was not aware of this because the emails from the school were going to his junk mail box. This resulted in his enrolments being cancelled in June 2016.

(f)    He started to send his documents to the agent in May 2016 but it took a lot of time to process the documents. It was not until November 2016 that they were processed. In November 2016, he received a letter of offer from the Holmes Institute and he paid the fees immediately because he really wanted to study. He commenced the course for two weeks but was then asked to leave because his agents had not given them the documents needed from Griffith University, namely the Letter of Release.

(g)  He then did not enrol in anything further until June 2017 because he was trying to transfer from Griffith University to another school. He went to Griffith University many times to work things out. The Holmes Institute promised they would wait for him to come back.

(h)  He felt shameful and he did not know the right way. He was relying on his agent because his English was not good. He was relying upon his agents and he was cheated by them.

1. During the whole time he was trying to get enrolled and study at a good school. He is currently enrolled with Harvest Education Technical College (HETC). He has just completed a Certificate II in Spoken and Written English. He completed it in a short time. His teachers told him that he can also complete the Certificate III and Diploma in a short time so that he can start his Bachelor degree. He is planning to study the Certificate III from December 2017 to July 2018 and then in August 2018 he will study a Diploma of Business from August 2018 until February 2019 and then he will be able to do the Bachelor degree, although he does not have a current Confirmation of Enrolment for the Bachelor degree.

(j)    The Tribunal put some information to the applicant pursuant to section 359AA of the Act as follows:

1. The Tribunal stated to the applicant that it had some information that it had to tell the applicant before it asked him some questions. The Tribunal stated it would give the applicant an opportunity to respond to or comment on that information. The Tribunal stated that it was going to put some information to the applicant that would, subject to the applicant’s comments or response, be the reason or part of the reason, for affirming the decision under review to refuse to grant the visa. The Tribunal indicated it would explain the information and its relevance and ask the applicant if he wished to respond to or comment on the information. The Tribunal advised the applicant that he was entitled to seek additional time to respond to or comment on the information and if he wished to do so, he should let the Tribunal know.

2. The Tribunal stated that it had information before it that was Provider Registration and International Student Management System (PRISMS) records (which shows courses in which overseas students are enrolled). That information includes that the Bachelor of Business that the applicant was enrolled in at Griffith University was cancelled on or before 23 September 2015. Further, between 2 June 2016 and 19 June 2017, the records show that the applicant was not enrolled in any study at all during that period. The Tribunal indicated that information is relevant because there was a breach of two conditions (8202 and 8516) of the applicant’s visa, which is relevant to the decision as to whether his visa should be cancelled and might cause the Tribunal to reach a conclusion such that it would have to affirm the decision to refuse to grant the visa.

(iii)The Tribunal asked the applicant if he understood the information set out and why the information was relevant. The applicant indicated that he understood. The applicant indicated he wished to comment on or respond to the information there and then. He said that the documents submitted that if the transfer from Griffith University happened in 2015, he should have been able to study at the Holmes Institute according to what his agent said. The Tribunal asked the applicant if he had a current enrolment in relation to the Bachelor of Business. He responded that his agent informed him that he could still study at Griffith University and if the visa is not cancelled he thinks he will study at Kaplan school.

(iv)The applicant confirmed that he enrolled and paid money to the Holmes Institute but they did not accept him because Griffith University would not release him. He said that the Holmes Institute initially did not refund the money paid to them but did after three months when he involved his lawyer. The Tribunal indicated that one of the concerns was that his enrolment in the Bachelor of Business at Griffith University was cancelled on 23 September 2015. The applicant responded that he wanted Griffith University to cancel his Confirmation of Enrolment because that is why no other school would accept him as a student. At that time he chose the Holmes Institute because they have a Bachelor program. He spent a lot of time working as well and he felt like he was not being treated well.

(k)   The Tribunal suggested to the applicant that it was his responsibility to remain enrolled in study whilst on a student visa and that the information discussed shows that the applicant was not enrolled in anything at all between June 2016 and June 2017. The applicant responded that he started to send his documents to the agent in May 2016 but it took a lot of time to process the documents. It was not until November 2016 that they were processed. In November 2016, he received the letter of offer from the Holmes Institute and he paid the fees immediately because he really wanted to study. He found out at the end of November 2016 that he could not enrol with the Holmes Institute. He then did not enrol in anything further until June 2017 because he was trying to transfer from Griffith University to another school. He went to Griffith University many times to work things out. The Holmes Institute promised they would wait for him to come back.

(l)    He received the notification about cancellation of his visa on 3 March 2017. He really wanted to have a degree because he has spent so many years in Australia and so much money. If he does not have a degree, his family will feel shame. After that he employed a lawyer to help him and he managed to get his degree so he started to feel like he going in a good direction.

(m) The Tribunal again discussed with the applicant that the information before the Tribunal is that the applicant was not enrolled in any course of study between 2 June 2016 and 19 June 2017. The applicant said that the Holmes Institute did not give him a Confirmation of Enrolment but they did allow him to start studying before they raised the issue with the Letter of Release from Griffith University.

(n)  If the visa remains cancelled, he will be very embarrassed because his family has spent a lot of money and it will be very embarrassing if he is not able to finish his studies in Australia. It will impact the business of his family because their business partners will not trust them anymore because they only have one son who spent many years in Australia and does not have a degree. He cannot study in Vietnam. The examinations for the Bachelor degree in Vietnam will be very difficult. He has been in Australia for a long time. Vietnam is a developing country with few opportunities for a job. It will be very hard for him to get a job in Vietnam without a degree. He is the only son in the family. He has to go back to Vietnam and care for his parents and his sister.

(o)  When he was trying to transfer to the Holmes Institute that was his only option because his English was not good enough to study at Griffith University. The Tribunal discussed with the applicant that it might hold a concern on this basis that he might not have the ability to complete a higher education course in Australia, noting that the applicant has now been in Australia and studied for three English courses and had needed an interpreter’s assistance for almost the entirety of the Tribunal hearing. The applicant responded that at the time he was too young and he was on his own. His parents were not there to support him and he could not organise his time and study. Now he realises the importance and will try and finish his studies in as short a time as possible. He responded that he is trying to improve his English because he knows it is important and he thinks his English will gradually get better. His teacher has told him that he completed his latest certificate more quickly than his other classmates.

1. Ms Tran’s evidence to the Tribunal included as follows:

(a)  Her employer is an education agent.

(b)  She confirmed that in July 2016, they applied on the applicant’s behalf for him to study a Bachelor of Business at the Holmes Institute but Griffith University would not issue a letter of release. At that time another staff member was handling the applicant’s matter.

Issue 1 - Does the ground for cancellation exist, that is, has the applicant complied with condition 8202?

1. The applicant does not dispute that he ceased to be enrolled in a registered course from 2 June 2016.

2. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between 2 June 2016 and 19 June 2017. Accordingly, the applicant has not complied with condition 8202(2).

3. It follows that the Tribunal finds that there is a ground for cancelling the applicant’s visa under s.116(1)(b) of the Act. 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.

Issue 2 - Should the discretion to cancel the visa be exercised having regard to all the relevant circumstances?

1. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in PAM3 ‘General visa cancellation powers’ as referred to earlier in these Reasons.

2. The purpose of the visa granted to the applicant was for the applicant as a non-citizen to undertake study in Australia in a higher education course, or as a pathway to and including a higher education course. However, as at the date of the NOICC on 23 February 2017, he had not been enrolled in a course of higher education since 2 June 2016, a period of over eight months.

3. The Tribunal considers the period of non-enrolment in a registered course of study of eight months to be a significant period and therefore a significant breach which weighs heavily in favour of cancellation of the visa.

4. It was fundamental to the grant of this visa to the applicant that he be enrolled in a higher education sector course, and maintain enrolment in such a course in order to comply with another condition of the visa, condition 8516. On the evidence he failed to be enrolled in such a course from 23 September 2015. The breach of this condition also weighs in favour of cancellation.

5. As regards the circumstances which have given rise to the visa cancellation, based on the applicant’s evidence, there seems to have been a number of matters contributing to the applicant’s current position. These included his inability to successfully pass the initial stages of the packaged courses leading up to the planned Bachelor of Business at Griffith University, discovering that the planned introductory courses in the packaged course arranged by his education agent were not a pathway to the Bachelor of Business at Griffith University, his failure to check his emails and remain in contact with his education providers contributed to his enrolment being cancelled in June 2015, reliance upon inadequate or misleading advice from various education agents, delay in receiving a letter of release from Griffith University and his young age and inexperience at managing matters by himself. When considered cumulatively the Tribunal considers that overall these circumstances have been beyond the applicant’s control and considers this weighs against the discretion being exercised to cancel the visa. However, the Tribunal is also satisfied that the applicant has genuinely been seeking enrolment with the help of an education agent since July 2016.

6. Given the applicant’s difficulties with English, the Tribunal holds concerns that the applicant may not have the ability to successfully complete a higher education course in Australia. However, the Tribunal has taken into account that when the applicant initially arrived in Australia, he was very young and was living alone and managing his own affairs for the first time. Whilst he has struggled with learning English, it is apparent he has put a great deal of effort into his English studies, and has made considerable efforts to improve his English, as the applicant illustrated by bringing along to the Tribunal copious pages of assignments he completed, outside of registered study. Further he has now completed a Certificate II in Spoken and Written English (in November 2017). The Tribunal places weight on the applicant’s considerable efforts in this regard, with some success, as weighing against exercising the discretion to cancel the visa.

7. If the applicant’s visa is cancelled, he could become an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. He would have limited options to apply for any other visas in Australia. He could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

8. The Tribunal accepts that the applicant may suffer hardship by cancellation of his visa because he will not be able to apply for a visa to return to study in Australia in the near future, because of the embarrassment and displeasure his family will feel and because cancellation may impact the business of his family because their business partners will not trust them anymore. Further, the Tribunal accepts that the applicant may have had better employment options if he did complete a Bachelor degree and that his family have invested significant financial resources in his study in Australia, seemingly for no result. The Tribunal places some weight on these hardships that may be caused as weighing against cancellation of the visa.

9. Nothing adverse is known about the applicant’s past and present conduct towards the Department. The Tribunal places some weight on this as weighing against cancellation of the visa.

10. There are no persons in Australia whose visas would, or may, be cancelled under s140 as a result of cancellation of the applicant’s visa. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

11. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

12. On balance and considering the circumstances as a whole, the Tribunal concludes that the discretion to cancel the visa should not be exercised.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Susan Trotter
Member
ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.