Luu (Migration)

[2019] AATA 4921

Luu (Migration) [2019] AATA 4921 (29 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Kim Thanh Luu

CASE NUMBER:  1804489

HOME AFFAIRS REFERENCE(S):           BCC2017/3916166

MEMBER:Donna Petrovich

DATE:29 October 2019

PLACE OF DECISION:  Melbourne

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 29 October 2019 at 10:38am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course  – consideration of discretion – commitment to study – degree of hardship – married to an Australian citizen – circumstances giving rise to non-compliance – family problems – beyond applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 January 2018 made by a delegate of the Minister for Home Affairs 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 did not comply with 8202(2) (a) of condition 8202.  This was based on evidence from Provider Registration and International Student Management System that the applicant had not been enrolled in a registered course since 02 May 2017. 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 9 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course and therefore did not meet condition 8202(2).

   The applicant is a 24 year old citizen of Vietnam. Her mother is a Florist and father works in Finance, the applicant’s parents are divorced.  The applicant has two sisters aged 18 and 10 who live in Vietnam. The applicant was granted a visa on 17 March 2014, and arrived in Australia on 29 March 2014. She came to Australia to study English at La Trobe University, but discontinued after six months. The applicant was not enrolled in a registered course of study from 2 May 2017 until 4 Jan 2018. The applicant remained un-enrolled for 9 months and was notified of intention to consider cancellation was issued to the applicant on the 4^th January 2018. The applicant married Australian citizen on the 20 November 2018.

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

8. 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 consider whether the power to cancel the visa should be exercised.

   Consideration of the discretion to cancel the visa

9. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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

10. During the hearing held on 9 September 2019 the applicant told the Tribunal that the purpose her stay and travel to Australia was to study and that she had come to Australia to study English language at Latrobe University which she found difficult and changed courses after 6 months and commenced a Business course at Westin University and completed 5 months of a 6 month course. The applicant studied continuously for 11 months in spite of some initial difficulties with her course; having changed courses she completed 5 of the 6 months required.

11. The applicant did not finish the course due to having to return home to assist with a family dispute, which resulted in her Parent’s divorce. The applicant told the Tribunal that she would like to resume study, and wanted to make a contribution to Australia by working as a volunteer. The applicant told the Tribunal that after her ordeal with her family that she wanted to make a fresh start and complete studies in Early Childhood studies. The Tribunal has considered accepts that the applicant studied and did not breach her visa until she was required to assist her family at home, and that whilst she had experienced some difficulty with her initial course had found and committed to her study.  The Tribunal places weight for the applicant.

    The Tribunal in its consideration is prepared to accept that the applicant’s purpose for coming to Australia was to study, she told the Tribunal that she would like to continue her study, and that she now would like to make  a fresh start. In giving this consideration the Tribunal places weight in favour of the applicant. 

    The extent of compliance with visa conditions

12. The applicant had initially studied English language at Latrobe University for 6 months and on finding this too difficult had changed courses to study Business at Westin University, where she studied for 5 months of the 6 months of this course before she was required by family to return to Vietnam.  The applicant studied for 11 months and did not breach her visa during this time. The applicant was not enrolled in a registered course of study from 2 May 2017 until 4 Jan 2018.the applicant remained un-enrolled for 9 months and was notified of intention to consider cancellation which was issued to the applicant on the 4^th January 2018.

13. The Tribunal in considering the circumstances of the applicant, whilst not undermining the serious breach of her visa for 9 months by remaining unenrolled; takes into consideration the applicants financial circumstances and the difficulties she encountered on her return from Vietnam.  The Tribunal is prepared to accept that the applicant had previously held her visa and studied for 11 months without breaching any conditions. The Tribunal in this circumstance places weight in the applicant’s favour.      

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

    In relation to the applicant’s family in Vietnam in relation to degree of hardship that may be causes there is potential for greater hardship in relation to the applicants mother who has had to sell assets to pay for medical expenses for her parents, the Tribunal accept that this may place financial, emotional and psychological hardship on the applicant and her family if she were to return home without completing her study which would compound the hardship already experienced by the family and in light of the applicants psychologist diagnosis of depression, anxiety and Adjustment disorder. The Tribunal in considering this places weight for the applicant. 

    The applicant met her husband at friend’s birthday party initially and after knowing one another for one year they were married on 20 November 2018. The applicant told the Tribunal that prior to meeting and marrying her husband she was struggling emotionally and financially. She told the Tribunal that he supports her physically, financially and emotionally and they are very close in every way. The applicant’s husband told the Tribunal that the couple are reliant on each other for emotional support and they have a close bond.

14. There is a significant potential for hardship in the case of this applicant who is now married to an Australian citizen. The applicant and her husband are reliant on each other for emotional support, and are trying to have a baby and are currently undergoing fertility treatment.  There is a strong possibility if the applicant’s visa remained cancelled and she was required to return to Vietnam that she would face financial, Psychological, and emotional hardship and potentially further damage to her mental health.

15. The applicant also provided a Clinical Psychologist from Dr Sandra Nguyen, who provided a report detailing her assessment that her client was suffering from an Adjustment Disorder with features of Anxiety. That Ms Luu “presented as a highly anxious and stressed during her counselling and was visibly upset when talking about being possibly separated from Mr Vu” her husband.

16. The Tribunal also takes note of a psychologist report provided to the Tribunal by the applicant’s husband from his psychologist who details the applicant’s husband’s condition and highlights the stress placed on the applicant’s husband and herself as a result of her circumstances in relation to her visa.

17. The Psychologist Tim Watson Munro details the applicant’s husband as “a highly stressed individual who is currently engaged in proceedings with his wife, Ms Kim Thanh Luu with a view to enabling her to remain in Australia”.  He notes that the applicants husband Mr. Mai is “suffering high levels of psychological distress arising from the uncertainty concerning his wife’s current position in the country.”  

18. “Mr. Mai is currently suffering a severe and recurring Depressive Disorder according to DSM – 5 criteria, which was noted through appropriate testing.” Further to his comments he says” Certainly, should his wife be required to leave Australia, I would anticipate a further escalation in the intensity of his condition”.

19. In addition and in consideration of the applicants marriage, the Tribunal places weight in favour of the applicant.

    Circumstances in which ground of cancellation arose.

20. At this time her mother and father experienced difficulties in their marriage and both Grandparent suffered strokes one after the other. As a result of the separation and divorce of her parents and her Grandparents illness; the applicant was unable to pay her student fees as she was supported by her parents.  The applicant told the Tribunal that she had become alienated from her father and received no money from him.  Her mother had to resort to selling assets to pay for treatment for her sick grandparents, under these circumstances the applicant did not want to ask for money from her already distressed mother to pay for her enrolment.

21. The applicant told the Tribunal that she found her study difficult and stressful at Latrobe and commenced a business course through Western Institute of Technology, where she studied for six months.  The applicant was unable to pay her University fees and so her COE was cancelled. During this time the applicant did not work and had very little money to live on only the money that her mother could afford to send her.

22. The applicant was not enrolled in a registered course of study from 2 May 2017 until 4 Jan 2018 the applicant remained un-enrolled for 9 months and was notified of intention to consider cancellation that was issued to the applicant on the 4^th January 2018. The applicant did not have access to her emails at the time as the result of setting up a new phone after losing her original phone, she experienced difficulty obtaining a new phone number and had also moved residence.  As a result she did not receive the notification of intention to consider cancellation until after the time for response has expired.  She did not contact the department but sought advice from a friend who told her it was too late to respond. The applicant’s visa was cancelled 31 Jan 2018. The Tribunal asked the applicant if she contacted her education provider to ask for a deferment of fees and she told the Tribunal she did not as it was too late. The applicant provided a report from Tim Watson-Munro which included an assessment of the applicant’s psychologist Dr Sandra Nguyen who has diagnosed an Adjustment disorder with features of anxiety, which Dr Watson- Munro agreed with.  Whilst the applicant did not seek to defer, I do not place weight against her on the basis of her Psychological report and other issues beyond her control. 

23. Due to the combined circumstances of financial stress caused by her estrangement from her father and her mother’s difficult financial circumstances in having to sell assets to look after her parents, the applicant was placed under financial hardship making it impossible for the applicant to pay her fees.  The applicant was also affected by the combined and upsetting family circumstances of her parent’s divorce and her Grandparents illness. The Tribunal in considering this places weight in favour of the applicant.

24. Dr Sandra Nguyen wrote in a letter dated 12 April 2019 that her patient had attended counselling for stress and anxiety. Dr Nguyen diagnosing and Adjustment Disorder and anxiety. She provided an opinion that Ms Nguyen is struggling to cope with her anxiety and stress. The Tribunal in considering this places weight in favour of the applicant.   

    The Tribunal also heard during the time before her marriage she had found it very hard financially and had very little money only what her mother could afford to send her. In this case it would seem that the circumstances in which the grounds for cancellation arose were beyond the applicants control and as such the Tribunal takes the view that the visa should not be cancelled and places significant weight in favour of the applicant.   

    Past and present behaviour of the visa holder towards the department

25. The applicant was polite and co-operative with the Tribunal during the hearing. There was no evidence that the applicant had been uncooperative towards the Department. As such I give some weight in her favour.   

    Whether there would be consequential cancellations under s.140

26. In this case not relevant.

    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

27. The applicant understood that she would need to return to Vietnam if her visa was cancelled. I acknowledge that she would need to apply for a bridging visa E to remain lawfully in Australia so that she can finalise any outstanding matters and it was discussed with the applicant that she would be subjected to Section 48 of the Act which would limit her options for returning to Australia or applying for other visas. In considering this the Tribunal gives some weight to this.

    Any other relevant matters

28. The visas holder has commenced a relationship with an Australian citizen and was married to her now husband on the 20^th November 2018. Her husband currently works at a restaurant at Crown Casino and has stable employment.  The applicant told the Tribunal that they are committed to each other and are trying to start a family.  The applicant has commenced fertility treatment and has a love of children and would like to pursue a course in Childcare.  The Tribunal has considered this and believes that there is potential for this matter to be the subject hardship to the applicant and her husband. The Tribunal places some weight in favour of the applicant in this regard.     

29. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Donna Petrovich
    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.