Lu (Migration)

[2018] AATA 1548

Lu (Migration) [2018] AATA 1548 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thua Thong Lu

CASE NUMBER:  1616866

DIBP REFERENCE(S):  BCC2016/2889418

MEMBER:Antoinette Younes

DATE:1 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 March 2018 at 4:12pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Genuine intention to complete studies – A compelling need to remain in Australia – personal challenges

LEGISLATION
Migration Act 1958, s 116, 140
Migration Regulations 1994, Schedule 8, Visa condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 October 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 attached to his 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. The applicant appeared before the Tribunal on 20 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record in which it is noted that information available in the Provider Registration and International Student Management System (PRISMS) indicates that as of the date of the delegate’s decision record of 6 October 2016, the applicant had not been enrolled in a registered course of study since 20 November 2015.  The applicant has acknowledged that there has been non-compliance with condition 8202(2).  He provided explanations and evidence that he is currently enrolled in a Bachelor of Business and Commerce degree commencing on January 2017 and finishing on 31 January 2019.

10. On the evidence, the Tribunal finds that from November 2015 until his enrolment in January 2017 in the Bachelor of Business and Commerce degree, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

11. As the applicant has failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) arises. It follows that the visa may be cancelled.

    Consideration of the discretion to cancel the visa

12. 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.

13. 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).

    The purpose of the applicant’s travel to and stay in Australia - whether the applicant has a compelling need to travel to or remain in Australia

14. The applicant has claimed that the purpose of his travels and stay in Australia was to study and he was granted the visa for that purpose.  He gave evidence that he came to Australia at the age of 17 to undertake years 11 and 12 which he completed in 2013. He commenced studying a Diploma in Business and Commerce in 2014. He failed two units and finished the Diploma in mid-2015. Subsequently he was enrolled in a Bachelor of Business and Commerce degree which he commenced in early 2016 at the University of Western Sydney (UWS). He stated that although he was enrolled in units, this was not recorded formally. He said he discovered this when the classes started. The Tribunal asked the applicant if he took any action to correct the record and he stated because he was shy and depressed, he did not attempt to sort out the problem or seek any assistance. 

15. In relation to the current enrolment in the Bachelor of Business and Commerce degree due to be completed in early 2019 and in response to the Tribunal’s questions about his grades in the course, he stated that during the first semester of 2017, he passed three units.  The Tribunal asked the applicant about his results for the second semester of 2017 and he stated that he does not know because he has not checked. The Tribunal expressed surprise that he has not checked his grades and requested a copy of his academic record for that course for 2017.  Post-hearing, the applicant provided a copy of his academic results for 2017 showing that for the Autumn 2017 semester, the applicant passed two subjects and one result is pending.  For the Spring 2017 semester, the document shows that the applicant failed all three subjects for “Non-Submission”.

16. In explaining the breach, the applicant has provided submissions and other documents to the Tribunal and in response to the notice of intention to consider cancellation.  The Tribunal has given regard to relevant material.

17. The applicant was granted the subclass 573 visa on 26 November 2014 to undertake higher education studies, until 31 March 2017. Although during this time, the applicant has completed a number of courses, he has not progressed satisfactorily or completed a bachelor’s degree. The applicant is currently enrolled in a Bachelor of Business and Commerce degree.  The Tribunal is satisfied that his grades in the course so far and particularly for the Spring 2017 semester indicate that the applicant is having serious difficulties in achieving academic progression commensurate with a degree course.

18. The applicant expressed his desire to remain in Australia to study and complete the Bachelor of Business and Commerce degree.  The Tribunal accepts as plausible that the applicant travelled to Australia to study and that he has the desire to remain for study purposes, but on the evidence before it, the Tribunal is not satisfied that this means that the visa should not be cancelled or that he has a compelling need to remain in Australia, or that he would able to progress satisfactorily to complete the degree as the evidence before the Tribunal suggests otherwise.

    The extent of compliance with visa conditions - whether the applicant has otherwise complied with visa conditions now and on previous occasions

19. Although there appears to be evidence of non-compliance with other visa conditions, the applicant’s visa was cancelled on the basis of non-compliance with condition 8202 which the Tribunal considers to be significant and means that the visa should be cancelled.

    The degree of hardship that may be caused to the applicant and any family members - whether the applicant is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

20. In a report dated 26 September 2016, Dr John McMahon (clinical psychologist) provided a comprehensive analysis setting out amongst other things, the applicant’s background, assessments undertaken by Dr McMahon, and diagnoses. Dr McMahon concluded that the applicant would meet the criteria for a Major Depressive Disorder and an Avoidant Personality. In essence, Dr McMahon assessed the applicant as being depressed, anxious, lonely, vulnerable, unusually dependent, self-effacing, non-competitive, lacking in social support, and shy. Dr McMahon recommended review by the applicant’s general practitioner for the prescription of antidepressants and referral for cognitive behavioural therapy for 12 to 20 sessions. Dr McMahon expressed the view that the applicant has adequate intellect to study at the tertiary level but he has weak English language skills which may increase the perceived stress of study.

21. The Tribunal discussed with the applicant Dr McMahon’s report. The Tribunal asked the applicant if he had followed up Dr McMahon’s recommendation for post treatment. The applicant stated that he did not because he wanted support from his family. The Tribunal expressed concerns that the applicant had not acted on the recommendations of a professional person from whom he had sought assistance. The applicant reiterated that he wanted the support and help from his family. The Tribunal indicated that it would give further consideration to Dr McMahon’s assessment and to his comments that the applicant had the capacity to undertake study at a tertiary level. The Tribunal noted that the applicant appears to have had difficulties undertaking courses at a tertiary level.

22. In post-hearing submissions, the applicant advised that he contacted Dr McMahon who referred him to other health professionals.  The applicant outlined the contacts he made.  The Tribunal finds it difficult to accept that the applicant did not follow the recommendations (up until post-hearing and subsequent to the Tribunal’s concerns) of a professional person from whom he had sought assistance raising serious doubts about the reason for seeing Dr McMahon.  It appears to the Tribunal that the applicant saw Dr McMahon particularly because of the visa cancellation.  Although this potential aim would not undermine the findings of Dr McMahon, it does suggest that unless guided or counselled, the applicant is reluctant to take independent steps to address challenges in his studies and/or personal difficulties.  The Tribunal is of the view that undertaking and completing tertiary studies require amongst other things, independence, ability to deal with personal/study challenges, self-direction and motivation. The Tribunal is satisfied that on balance and without intending to sound harsh, the evidence indicates that these are difficulties for the applicant – as indeed identified by Dr McMahon.  The Tribunal has carefully considered Dr McMahon’s observations and it accepts that the applicant has had personal challenges.  The Tribunal has given some favourable weight to the applicant’s circumstances.  The Tribunal acknowledges that the applicant has completed his secondary education and a Diploma course.  The Tribunal gives regard to Dr McMahon’s comments that the applicant has “adequate intellect to study at the tertiary level…”.  However, the Tribunal is satisfied that although the applicant might have the intellectual capacity, his results in 2017, particularly those of Spring 2017 raise some doubts about his ability to satisfactorily progress and complete a degree course. 

23. The applicant gave evidence that his grandmother became unwell in 2015 and the whole family became worried about her. He stated that he became depressed when he heard she was sick because he was very close to her. The applicant has provided medical evidence relating to his grandmother. The Tribunal has given some favourable weight to this aspect.

24. In further explaining the non-compliance, the applicant indicated to the Tribunal that his siblings have performed well academically which has put pressure on him to perform at that level. He stated that he felt he needed to keep up with his siblings. The Tribunal referred to documents provided relating to his siblings’ academic performance and indicated that the Tribunal would further consider this material.  Although the Tribunal accepts that the siblings have achieved academically which the applicant perceived as putting pressure on him to perform, the Tribunal is of the view that the applicant is an adult who holds an independent visa on his own merit with the expectation that he meets the criteria and complies with conditions.

25. The applicant’s brother and mother gave evidence expressing support for the applicant, including financial support. The applicant’s mother supported the applicant’s evidence that he became distressed when his grandmother became ill. The applicant’s brother indicated that he feels that the visa cancellation was partly his own fault because of his work commitments.  The Tribunal accepts that the applicant has the support of his family and the Tribunal has given this aspect some weight.  Whether it is the brother’s fault or not, the applicant must comply with his visa conditions and consequently, the Tribunal is not persuaded by this explanation.

26. The Tribunal accepts as plausible that if the visa were to be cancelled, there could be a degree of disappointment to the applicant and to his family in that he would be returning without tertiary qualifications from Australia. The Tribunal has given this aspect some weight.

27. The Tribunal is mindful that the applicant could become unlawful and may be subject to detention but these are intended consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

28. Looking at the circumstances cumulatively, the Tribunal is not satisfied that on balance, there is a degree of hardship that means that the visa should not be cancelled.

    The Circumstances in which ground of cancellation arose - whether there were any extenuating circumstances beyond the applicant’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, whether the relationship has broken down as a result of family violence.

29. As outlined above, the applicant raised amongst other matters, the grandmother’s illness and the personal challenges as identified by Dr McMahon as being the fundamental reasons for the breach and the Tribunal has given some weight to those circumstances.   

30. In oral submissions to the Tribunal, the representative indicated that the applicant did not intend to breach the visa condition and that the applicant has a genuine intention to complete his studies.  The Tribunal is of the view that while the applicant might not have intended to breach the visa condition, the evidence is that he did for a significant period of time.  The Tribunal has carefully considered the applicant’s circumstances and on the evidence, the Tribunal is not satisfied that there were extenuating circumstances or other circumstances that mean that the visa should not be cancelled.

    The applicant’s past and present behaviour towards the department - whether the applicant has been truthful and cooperative in their dealings with the department.

31. The applicant responded to the notice of intention to consider cancellation and the Tribunal has given this aspect some weight in favour of the applicant but this does not mean that the visa should not be cancelled.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140

32. There is no evidence before the Tribunal and the applicant is not claiming that there would be any consequential cancellations under s.140.

    Whether there are mandatory legal consequences to a cancellation decision

33. As discussed earlier, the applicant could become unlawful and may be subject to detention but these are intended consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

34. On the evidence before it, the Tribunal is not satisfied that any international obligations would be breached as a result of the cancellation. 

    Any other relevant matters raised by the applicant

35. There are no other matters requiring consideration by the Tribunal.

36. The Tribunal has empathy for the applicant who came across as being polite and well-natured.  However, considering the circumstances as a whole and for the stated reason, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Antoinette Younes

    
    Senior Member

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.