Lu (Migration)

Lu (Migration) [2020] AATA 562 (25 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Ngoc Hong Lu
CASE NUMBER:  1904557
HOME AFFAIRS REFERENCE(S):          BCC2018/5317778
MEMBER:Wendy Banfield
DATE:25 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 25 February 2020 at 3:25pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in lower-level course – enrolled in advanced diploma after enrolment in degree course cancelled – discretion to cancel visa – factors for and against cancellation – grandmother’s death – depression and anxiety – no treatment at the time or approach to education provider – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(b)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8202(2)(b) attached to the visa. This condition requires an applicant to maintain enrolment in a registered course at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background
The applicant is a citizen of Vietnam and is currently 24 years old. She came to Australia on 29 September 2013 as the holder of a Subclass 573 Student visa. The applicant had been enrolled to study a Diploma of Accounting and Bachelor of Business but her enrolment in the Bachelor course was later cancelled. The highest level of study the applicant has completed since her arrival is a Diploma.
The applicant appeared before the Tribunal on 10 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
Prior to and at the time of the hearing, the applicant submitted the following evidence in support of the application for review:
·     Statement dated 4 December 2019;
·     COE for a Bachelor of Entrepreneurship and Innovation;
·     Family relationship certificate (with English translation);
·     Grandmother’s death certificate and medical record (with English translation);
·     Medical certificate in the name of the applicant dated 12 December 2017;
·     Certificates and transcripts for Academic English courses, Certificate IV and Diploma of Accounting and Diploma of Business;
·     Travel documents in the name of the applicant issued on 16 November 2018;
·     Psychologist’s report dated 4 December 2019.
The applicant provided similar evidence to the Department as well as a written statement dated 6 February 2019 which has also been taken into account in this decision.
The hearing
The applicant confirmed she came to Australia in 2013 to study English followed by a Diploma and Bachelor degree. She said her plans were to complete her studies and return to Vietnam to work in accounting. The Tribunal put to the applicant that her visa was granted for her to study a Diploma and Bachelor degree. She advised she had completed the Diploma and started the Bachelor program, however, her grandmother passed away and she had psychological problems.
Instead of continuing a degree course, the applicant said she enrolled for the following year and in the meantime she just waited. She said at the time the Department cancelled her visa she was studying a Diploma of Management. The applicant advised she was aware she had to maintain enrolment in a course of study. The applicant was asked if she agreed the Department had grounds to cancel her visa and she agreed that there were.
The Tribunal accepted the applicant had travelled to Australia for the purpose of study. When asked if she had a compelling reason why she needed to stay she said she wants to stay and complete her Bachelor degree. The applicant advised she needs a degree because she had been here some time and so far she only has studied to a Diploma level. The evidence was that she wants a Bachelor degree so she can find suitable work in Vietnam.
Regarding any hardship that may be caused by her visa being cancelled, the applicant said it will be very difficult because it affected her psychologically when her visa was cancelled. She said she was very stressed when the Department cancelled her visa. The Tribunal asked the applicant why she had not taken steps to ensure she did not breach visa conditions. According to the applicant, her previous agent had not explained it clearly to her. The applicant added she had not understood why the Department had cancelled the visa.
The Tribunal asked the applicant about the circumstances that led to her visa being cancelled. She said she had not been able to keep up with her studies and her agent only assisted her to transfer to another college. She said they had not helped her with her visa conditions. When asked about any consequential cancellations, the applicant indicated there were none. The Tribunal outlined the legal consequences of her visa being cancelled and the applicant said it will affect her now and in the future.
In the applicant’s case, there is no evidence Australia has any international obligations. The applicant asked that the Tribunal consider her case as she wants to complete her Bachelor degree and return to her home country. She said it was the wish of her family and her grandmother that she studies in Australia. The applicant submitted she would be able to study at a tertiary level and she will focus more on her studies in order to complete the degree.
The applicant’s representative referred the Tribunal to the applicant’s travel information where she has returned to Vietnam. He said her grandmother’s death had affected her studies.
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
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(1)(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?
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 8202(2)(b) attached to the applicant’s visa. This condition requires that a visa holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than the registered course in relation to which the visa was granted.
In this case, the applicant was granted a Student visa to study a Diploma of Accounting and Bachelor of Business. A Bachelor degree provides a level 7 qualification from the AQF. The applicant’s enrolment in a Bachelor degree was cancelled on 5 March 2018 and the applicant enrolled instead in an Advanced Diploma of Leadership and Management. The Advanced Diploma is at AQF level 6 which means the applicant did not maintain enrolment in a registered course at the same level as, or higher than, the registered course in relation to which the visa was granted. Therefore the applicant did not comply with condition 8202(2)(b).
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 visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
· the 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
The applicant came to Australia to study a Diploma of Accounting and Bachelor of Business. She completed the Diploma and began the degree course before discontinuing and enrolling in a course at a lower level. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.
During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant’s submission in this regard was a general statement that she needs a Bachelor degree to gain employment in Vietnam and she has so far only obtained qualifications to a Diploma level. The applicant did not elaborate as to why she cannot study in her home country or what her career plans are. The Tribunal finds the applicant has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.
· the extent of compliance with visa conditions
There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a Student visa and weighs against the applicant in this case.
· degree of hardship that may be caused (financial, psychological, emotional or other hardship)
During the hearing the applicant claimed she would suffer psychological hardship if her visa is cancelled. She said it had been very stressful when the Department cancelled her visa. In her written submission to the Department the applicant outlined her difficulty studying higher education and the effect this, as well as her grandmother’s death had on her mental health. The Tribunal accepts there will be a degree of hardship caused by the applicant’s Student visa being cancelled and gives some weight in her favour in this regard.
The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.
· circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that 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
The applicant’s visa was cancelled because she remained in Australia as the holder of a Student visa but did not maintain enrolment in the higher education sector as required. The applicant gave two reasons for this; she found she was unable to keep up with the course while studying a Bachelor degree which led to stress and other health problems and her grandmother passed away after an illness. The applicant concluded she was not ready to study a Bachelor of Business and decided she would study in that field at a lower level. When she did consider herself ready to enrol in a degree course, the applicant said her grandmother became ill and passed away in November 2018.
The applicant explained in her written statement she was concerned that if she continued to study her previous Bachelor course, she would have failed and be reported for poor academic performance. The applicant claimed she had made every effort to overcome her weaknesses and continue to a Bachelor degree. At the Tribunal hearing the applicant submitted a Psychologist’s report dated 4 December 2019 stating she had attended a psychological assessment session that day. The report includes the applicant’s background in her home country and study history in Australia. It finds the applicant has suffered a level of depression and anxiety due to her study difficulties and her grandmother’s death.
The Tribunal accepts the applicant has experienced some issues with her studies and was affected by the death of her relative in November 2018. However, the applicant did not apply to change her visa to allow her to study at a lower level instead of breaching the conditions of her visa. She also did not seek help for her mental health at the relevant time, or defer her studies until she was in a position to resume. Although the applicant may have faced some stressful events they are not adequate reasons for her to stay in Australia while failing to comply with the conditions of her student visa over a long period of time.
The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to maintain enrolment in the higher education sector or seek a deferment of her studies during the relevant period. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.
· past and present behaviour of the visa holder towards the department
There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.
· whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.
· whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.
· whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.
· if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Subclass 500 Student Visa is not a permanent visa.
· any other relevant matters
The Tribunal considers that since the applicant has been in Australia since 29 March 2013, she has had ample opportunity in that time to undertake the studies she originally intended to do. While it may have been acceptable for the applicant to reassess her abilities after commencing her studies in Australia, it was not open to her to enrol in several lower level courses in breach of visa conditions.
Conclusion
The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in her favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached her visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Wendy Banfield
Member

[2020] AATA 562

25 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction