Luu (Migration)

[2019] AATA 1523

Luu (Migration) [2019] AATA 1523 (11 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Hoai Luu

CASE NUMBER:  1702580

HOME AFFAIRS REFERENCE(S):           BCC2016/4280899

MEMBER:Sean Baker

DATE:11 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 11 February 2019 at 5:15pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – limited academic progress – repeating prerequisite subjects without enrolment – no studies at the higher degree level – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 116, 359
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 February 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 delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course, in breach of condition 8202 on her visa, and cancelled the visa on the basis that the applicant had not complied with a condition of her visa. The delegate considered that the factors against cancellation did not outweigh those in favour and cancelled the visa. A copy of the delegate’s decision was provided to the Tribunal.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 1 February 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.

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. The applicant was sent a Notification of the Intention to Consider Cancellation (NOICC) letter on 16 January 2017. A response was received on 8 February 2017. The response did not dispute that there were grounds for cancellation. As set out in the delegate’s decision, the Provider Registration and International Student Management System (PRISMS) indicated that the applicant was not enrolled in a registered course from 28 June 2016.  

10. At hearing the applicant conceded that she had not been enrolled in a registered course from 28 June 2016 until the date of cancellation, 10 February 2017.

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for this period. Accordingly, the applicant has not complied with condition 8202(2) and the visa is liable to cancellation under s.116(1).

    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 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’

13. The applicant provided a response to the NOICC. Under cover of a submission was provided the visa grant notice, documents in relation to her English for Academic Purposes study, a letter of support from her employer and a statement from the applicant. The submission provided background and addressed factors which went to the visa not being cancelled which have been considered below. The statement from the applicant set out her family history and explained that she had come to Perth originally but had decided to come to Melbourne. She had enrolled at Della College but did not pass the course and was unhappy with the college. She transferred to Zarah but was advised to redo some assignments and then told she had failed. She then looked into re-enrolling. She received the NOICC and went to an agent. She had failed to take account of the end date of her course and presumed that as she was re-doing subjects and her visa approval that she was still enrolled. She works 15 hours a week at a beauty salon and has never breached visa conditions. She wants to complete her course and her family helps her financially. If she had to return she would feel she has wasted her education. This causes her emotional and psychological hardship. The letter from her employer states that the applicant is a hard worker and is committed to her studies.

14. At hearing the applicant explained that her study plan included studying general English and academic English at Murdoch before a Bachelor. She said that she had wanted to go to university but her family had had problems and it had been too expensive to pay Murdoch and so she had looked for another course and moved to Melbourne after the English course. I asked what courses she had moved to Melbourne for and she said it was Business Management, a certificate IV in Business at Della. I asked if she had enrolled in a Bachelor course since leaving Perth and she said she had not. I confirmed that she had not held enrolment in a Bachelor or Masters course after departing Perth and she said she was studying her Certificate and wanted to go to a Diploma before she went to a Bachelor.

15. I noted the most recent submission and evidence presented indicated that she had in fact completed her Certificate IV in Business course at Zarah on 27 June 2016, which the applicant had not been aware of until very recently.

    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

16. In the response to the NOICC it is submitted that the purpose of the subclass 573 is to give the applicant the opportunity of an education she could not get in Vietnam and that the applicant has inherited respect for learning since being in Australia.

17. In the 17 September 2018 submission to the Tribunal it is argued that there was an accumulation of circumstances that led to her being without enrolment and these were beyond her control. It is argued that the applicant was erroneously advised by Zarah that she needed to re-submit pieces of work, and as a consequence of this she was not enrolled for the above period, and that she had been enrolled in registered courses since her arrival in Australia and had completed the requirements of her courses.

18. At hearing the applicant said that she had come to Australia to study. She said that her intention was to complete her Bachelor of business management. She said the plan was to do her Diploma of business management as her mum had a business and the applicant wanted to do something to open a business management.

19. I have several concerns with this claim. As discussed below, the applicant was not enrolled in a higher education course for some years after she left Western Australia, and the applicant also did not have subsequent enrolment for the period after her certificate IV, and she has not, I find below, adequately explained this. Therefore, whilst I accept that the applicant has maintained enrolment except for the period of the breach (and that, I find, was not or was not wholly her fault as below), that enrolment has been at a lower level than that contemplated when she was granted the higher education subclass visa and I have taken this into account in giving this consideration only some weight in favour of the visa not being cancelled.

    the extent of compliance with visa conditions

20. There is not sufficient evidence before me to establish that the applicant has breached any conditions other than condition 8202.

21. In relation to the breach of condition, I have had regard to the submissions and I accept, as discussed in more detail below, that this was not or was not wholly the fault of the applicant and I therefore give this factor no weight towards the visa being cancelled.

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

22. The submissions claim that the applicant will suffer hardship in being unable to complete further education and that this may impact on her employment prospects. There is also information that the applicant has seen her GP and been referred to a psychologist because her mental health has suffered after the cancellation and has had symptoms of stress and depression.

23. At hearing the applicant said that her parents were worried and her mum cries on the phone. She said that she tells her parents everything is ok when she speaks to them.

24. The applicant is in a relationship with an Australian citizen, as evidenced by the relationship certificate provided. I have also had regard to the letter from her former employer which states that the applicant was a good worker and studied whilst working.

25. I accept that the applicant and her family may suffer some hardship if the visa remains cancelled. I accept that if the visa remains cancelled that the applicant and her partner may be separated. I note however that the applicant would not be barred from seeking a partner visa if the student visa remains cancelled. On the evidence and material before me I do not accept that the hardships claimed are significant or onerous. I give this factor some weight in favour of the visa not being 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

26. The circumstances before me are very different to those the delegate considered. It now appears, and I accept from the evidence provided, that the applicant did complete her Certificate IV at Zarah successfully on 27 June 2016. It appears that the provider, or someone associated with the provider informed the applicant that she had not successfully completed the requirements of the course, and emailed her copies of the work to be completed – which she says she did until she inquired in December 2016 about her status. I accept that events transpired much as the applicant claims – I have evidence of emails sent to her with workbooks to be completed after June 2016 and I have copies of receipts she obtained after handing in work after June 2016.  I accept therefore that the applicant was misled by her provider Zarah who incorrectly told her that she had not completed all of the requirements for her certificate IV. There are very real concerns with the conduct of the provider in this case and on the information before me I find their behaviour extremely concerning. For the reasons below, I give this only some weight towards the visa not being cancelled.

27. If the completion of the certificate IV was the only concern with the applicant’s circumstances, then the outcome of this review may have been very different. However, after speaking with the applicant I continue to have significant concerns, which I have discussed below.

    past and present behaviour of the visa holder towards the department

28. The applicant responded to the NOICC and has been engaged with the Department in the process of cancellation and before the Tribunal. I give this some weight in favour of the visa not being cancelled.

    whether there would be consequential cancellations under s.140

29. 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

30. Whilst the affirming of the decision would mean that the applicant would be required to depart Australia and would only have access to a limited range of visas, this is the intended function of the regime around visa cancellation. There is no suggestion that the applicant would be subjected to indefinite detention. She gave evidence that there was no reason she could not return to Vietnam, whilst indicating that she wished to remain in Australia to study and be with her partner. I therefore give this factor no weight.

    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

31. There is no evidence before me that any international obligations are engaged. The applicant said that there was no reason she could not return to Vietnam. I therefore give this factor no weight.

    if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

32. Not relevant.

    any other relevant matters.

33. This is a case which raised very significant concerns that were not directly related to the circumstances of the breach, but in this case have been determinative. They relate to what I have been able to determine of the applicant’s actions and intentions.

34. Firstly, the applicant admitted at the hearing that she had not enrolled herself in any further classes after the Certificate IV in Business at Zarah. At the hearing she said that this was because she needed an IELTS of 5.5 or completion of a certificate IV to go on to another class. I asked could she not enrol in another course, even if these were prerequisites to study another course and she reiterated that you needed a certificate IV to apply. This cannot be the case – evidently. The applicant told me that when she came to Australia she was enrolled in a Bachelor level course. So I do not accept on the information before me that the applicant was unable to be enrolled in a further course until she completed her certificate IV or had a certain level of English and I do not accept that this is the reason she was not enrolled in a further course after her certificate IV at Zarah.

35. This logically connects to the second area of concern. The applicant told me that she came to Australia with a study plan that included English language training and then a Bachelor degree. But as she told me at the hearing, since leaving Western Australia, she has not held enrolment in a higher education degree. This is highly significant, because the applicant is asking that her higher education subclass visa be reinstated, yet she has not held enrolment in a higher education course for years since leaving Western Australia. As she admitted, since this time she had not held enrolment in a higher education course, leading me to be concerned with whether the applicant had any intention to study at the higher education level, the main purpose for her having been issued the higher education subclass visa.

36. At the hearing I explained to the applicant that the fact she had not studied at the higher degree level despite having held the higher degree visa for three and a half years and not been enrolled in a higher degree course since leaving Perth caused me great concern with whether she would study at the higher degree level were the visa to be reinstated. She responded that she wanted to do something easy before she went to Uni, if she did a certificate that might be easier for her – if she went straight to University that might be too heavy for her but she knows that before Uni you can do a Diploma or Certificate course and that can make it easier. She said that her plan had been to pass the certificate IV and then do a Diploma and then move on to Uni.

37. Lastly, as I put to the applicant under s.359AA, PRISMS records that her original study plan was preparatory English courses under a Murdoch Uni preparatory course for academic studies and then a Diploma of Business and Bachelor of Commerce. After she left Western Australia she was enrolled in a series of low cost, low workload courses, at the vocational education level, many of which had been cancelled or not completed. I explained that this may indicate that after leaving WA the applicant’s intention was not to study at the higher education level and that study was not the primary or main purpose for remaining in Australia. In response the applicant’s representative said that the applicant had intended to study at the higher level and that she had not enrolled in the commercial cookery/hospitality courses which were present on her PRISMS record and believed that an agent may have enrolled her in these courses in error.

38. After the hearing a further submission was provided. This submission states:

    During the hearing, there was evidence of her student ID S2529 associated with COE enquiry for other courses such as Certificate III and IV in Commercial Cookery and Diploma of Hospitality. These entries our client vehemently denies ever applying for at all. She recalls asking about her Visa status with AusConnect Migration Services in Sunshine wherein she provided her name, date of birth and student details. She said she is not happy with Della International College, they were the migration agent who enrolled her in Della International College for her first Certificate IV Business Administration we have reasons to believe they have attempted to issue the COE inadvertently to persuade her to switch courses with Della International College. She refused and went with Zarah Institute with another Agent.

39. The submission goes on to state that she had completed her English Course from Murdoch institute of Technology and the certificate IV in business from Zarah. The submission also states that the applicant has been offered study at Stott’s College to study an advanced diploma of business and a Bachelor of Business. Attached to the submission is evidence of the completion of her courses and the offer letter from Stott’s college.

40. I have carefully weighed the information before me. As above, I accept that the applicant was not primarily responsible for the period of noon-enrolment because Zarah or someone at Zarah gave her incorrect information that she had not passed the course. However, this is not the end of the inquiry – I consider it very relevant to the possible reinstatement of a higher education student visa whether the person will study at the higher education level if the visa is reinstated.

41. In this case, I do not believe the applicant will. This is because, as above, the applicant ceased to be enrolled in a higher education course after leaving Western Australia. I consider that if she had genuinely intended to study at the higher education level after this time she would have taken steps to re-enrol in a Bachelor level course. I do not accept that vocational level courses that she has been enrolled in can be considered higher education – they are very clearly vocational level in terms of their assessment and structure of the course.[1] Nor do I accept the argument of the representative that these courses were leading to higher education – as noted above, the applicant did not hold enrolment in a course after the certificate IV at Zarah. Even if she had not been provided with incorrect information by Zarah which led to her re-submitting work she had already successfully completed, the applicant did not hold any further enrolment after June 2016 – I consider this strong evidence that the applicant did not, in fact, intend at that time to go on and study at the higher education level. And as put to her under s.359AA, since leaving WA she has been enrolled in a number of low level, low fee courses, which tends to support the view that the applicant does not intend to study at the higher education level. I have very carefully considered the offer letter from Stott’s college, but I place very little weight on this as evidencing the applicant’s true intentions – I place greater weight on her demonstrated behaviour since leaving WA and the fact that she was not enrolled in a further course after June 2016. I note that study for the advanced diploma had already commenced (on 28 January 2019) prior to her obtaining the letter of offer, and also that there is no evidence before me that the applicant has paid a deposit for these courses, but only obtained a letter of offer. I have no confidence that, were the visa to be reinstated, the applicant would study the advanced diploma and bachelor of business at Stott’s college.

    [1]

1. I have also considered the claims that the applicant did not enrol or did not intend to be enrolled in the cookery/hospitality courses recorded on her PRISMS record. I have considered the argument made by her representative above but I do not find this convincing – the applicant and representative have not provided any evidence that AusConnect migration service behaved in the claimed manner except for vague claims that they have ‘reasons to believe’ that this is what occurred. I do not find this convincing. Whilst I appreciate that the applicant has emphatically denied enrolling in these courses, I am not convinced by the explanations for why these courses would appear on the PRISMS record and I place greater weight on the PRISMS record.

2. On weighing all of the evidence before me I consider that the circumstances in which the ground of cancellation arose indicate that whilst the applicant may have breached the condition on the basis of the incorrect information given by Zarah, the wider context in which the breach occurred, and what I can discern of her behaviour and intention at this time leads me to find that the applicant did not intend, and does not intend, to study at the higher education level, and I therefore give this

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Sean Baker
   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.