Ngo (Migration)

[2024] AATA 21

Ngo (Migration) [2024] AATA 21 (2 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thanh Dat Ngo

REPRESENTATIVE:  Mr Michael Hanrahan (MARN: 1463825)

CASE NUMBER:  2303425

HOME AFFAIRS REFERENCE(S):          BCC2022/5708781

MEMBER:Jennifer Cripps Watts

DATE:2 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 2 January 2024 at 5:44pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – previous student visa cancelled – mental health issues – family bereavement – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 48, 106, 116, 140, 189, 198
Migration Regulations 1994, Schedule 2, 500.317; Schedule 4, Public Interest Criterion 4013; Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 March 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with a condition of the visa, relevantly condition 8202(2), which required that the applicant be enrolled in a full-time course of study.  The issue in the present case is whether the ground for cancellation is made out and, if it is, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal by MS-Teams video on 18 December 2023 to give evidence and present arguments.  An interpreter in the Vietnamese and English languages attended the hearing.  At the beginning of the hearing the applicant informed the Tribunal that he intended to give evidence in English and said he did not require the interpreter, except possibly for occasional clarification.  The applicant was told that he should use the interpreter at any time if he needed to.  The applicant did not request assistance from the interpreter during the hearing.  Nor did the Tribunal.  The Tribunal is satisfied that the applicant participated meaningfully in the hearing in the English language.  

4. The applicant’s representative informed the Tribunal by email on the morning of the scheduled hearing that they would not be attending.  This was raised with the applicant at the beginning of the hearing and he confirmed that he knew that the representative would not be attending and that he was comfortable proceeding with the hearing for both matters on review.

5. The applicant has two related review applications before the Tribunal:

   a.Tribunal matter number 2303425 (the student visa cancellation)

   The applicant’s previous subclass 600 student visa, which he held as the primary visa applicant, was cancelled on 6 March 2023 under the power of s 106(1)(b) of the Act because he did not comply with condition 8202 which required the applicant, in his circumstances, to be enrolled in a full-time registered course of study.  On 10 March 2023, the applicant applied to the Tribunal for review of the decision to cancel his previous student visa and provided the Tribunal with a copy of the primary decision record.

   b.Tribunal matter number 2307644 (the student visa refusal)

   The applicant claims to be in a de facto relationship with Thi Doan Vy Chau, who currently holds a subclass 500 student visa as the primary visa holder.  On 17 January 2023, the applicant made an application for a subclass 600 student visa, as a subsequent entrant dependent of Ms Chau on the basis of the applicant’s claim to be a member of her family unit, her de facto partner.  This visa was refused on 16 May 2023, essentially because the applicant’s previous student visa had been cancelled and he was therefore subject to a ‘risk factor’; Public Interest Criteria (PIC) 4013 prevents him from being granted another visa within three years of the cancellation.

6. 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

7. 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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1)(b) of the Act, the student visa he was granted on 13 October 2021 may be cancelled.

   Introduction to the Hearing

8. Before discussing the applicant’s matters with him, he was told that the Tribunal had read his Department and Tribunal files, and that an oral summary would be given including information relating to both his student visa cancellation and student visa refusal.  The applicant was informed that he should listen carefully and correct any information he did not agree with, or add any information he wished to in support of his applications and claims. 

9. Essentially, the oral introduction given to the applicant at his scheduled hearing included the following, relating to the cancellation of his previous student visa granted in 2021, and the refusal of his subsequent student visa application made in 2023.  The applicant was reminded that the hearing was for both matters and told, and it was explained to him why, his visa refusal was essentially as a result of his previous student visa being cancelled.

10. The applicant was told that the Tribunal is independent of the Department but still must apply the same law.  In summary, the Tribunal noted that on 13 October 2021 the applicant was granted a student visa as the primary applicant, and that visa would have naturally ceased on 10 May 2023.  However, on 15 February 2023, the Department sent the applicant a Notification of Intention to Consider Cancellation (NOICC) of the student visa granted in 2021.  The ground for cancellation under the power of s 116(1)(b) of the Act was on the basis that the applicant was non-compliant with a condition of the visa, condition 8202, because he did not maintain enrolment in a registered course from 29 October 2021.  The applicant was invited to provide a response to the NOICC in writing and did so, on 22 February 2023.  In the response, he agreed that he had been non-compliant with condition 8202; he also submitted reasons why the visa should not be cancelled.  The applicant, at this stage of the hearing, confirmed that these details were correct.

11. The applicant was informed, relating to the student visa cancellation, that there are a number of matters that the Tribunal must consider if the ground for cancellation exists on the question of whether the visa should be cancelled: such as the purpose of his travel and stay in Australia, the extent of the non-compliance, the degree of hardship that will be caused as a result of cancellation, the circumstances in which the ground for cancellation arose, the applicant’s past and present behaviour towards the Department, the legal consequences of cancellation, any international obligations Australia has and any other relevant matters.  The applicant was informed that if a favourable decision is made by the Tribunal on review of his student visa cancellation.

12. In the event that the Tribunal makes an unfavourable decision on review of the student visa cancellation, the Tribunal must then go on to consider the student visa refusal (subsequent entrant and dependant of the primary student visa holder, Ms Chau).  Even if PIC 4013 is not satisfied relating to the student visa refusal, the applicant was told that the Tribunal will consider if there are compelling or compassionate circumstances affecting an Australian citizen or permanent resident, or compelling circumstances in the interests of Australia, which would justify granting the visa. 

13. Dates and facts relating to the student visa cancellation and student visa refusal on review were summarised for the applicant.  His previous student visa was cancelled on 6 March 2023.  He had, a little under two months earlier, on 17 January 2023, applied for another student visa as a subsequent entrant and dependant of his de facto partner.  Among other criteria, the applicant must meet cl 500.317 which includes that an applicant is a member of the family unit of a person who holds a subclass 500 student visa.  If the applicant is affected by a ‘risk factor’, in this case PIC 4013, he cannot be granted another visa within the next three years because of the student visa cancellation.

14. In response to the Department’s NOICC, which invited the applicant to submit any compelling or compassionate circumstances as they are described in PIC 4013(1)(b) that would justify the grant of the visa, the applicant said he applied for a student visa on 17 January 2023 to mitigate his non-compliance that came about because of personal and family matters, and that he made the application before he received the NOICC.  The applicant confirmed all this information to be correct.

15. The applicant’s previous student visa was granted on 13 October 2021 and, with reference to the Confirmation of Enrolment (CoE) he provided with the visa application, the commencement date of the course was at the end of October 2021.  The reasons submitted by the applicant as to why he did not comply with condition 8202, in February 2023 in response to the NOICC included, in summary:  because his grandmother passed away on 23 October 2021, COVID-19 travel restrictions prevented him from attending her funeral overseas which cause the applicant emotional distress; his ability to study was negatively impacted; the Business course he was enrolled in was not his primary area of interest and did not align with his goals, but it was the course that his parents wanted him to do.  The applicant submitted that he had been a good and genuine student since 2016 up until the time of the start of the non-compliance.  At that time, the applicant had partially completed a Business Diploma. 

16. The applicant did not commence or complete any course of study from 29 October 2021 until his visa was cancelled.  It is noted in the primary decision record, with reference to the applicant’s PRISMS record, that he had a number of CoE’s cancelled due to non-payment of fees, non-commencement of studies, student notifying cessation of studies and unsatisfactory course progress.

17. The Tribunal paused to check with the applicant if this information was correct and he said, ‘it’s correct’ but also said he wanted to add something.  He was invited to do so, and said that he met his current girlfriend in 2022, a few months after the date of his non-compliance.  She encouraged him to see a psychologist, and suggested he contact the school, but that his condition was ‘still really bad’ and he ‘didn’t do anything’.  The applicant said he was not sure if the CoE was cancelled or not at that time.

18. The Tribunal referred the applicant to a psychologist’s report for an assessment done on 21 November 2023 that he had provided and told him that the report had been read and considered.

19. The applicant was asked if he had any questions before we talked further about his matters and questioned what was meant by the Tribunal combining the ‘two appeals’.  This was explained to the applicant and he confirmed he understood.

    Background

20. The applicant was granted a subclass 500 visa as the primary applicant on 13 October 2021, ceasing on 10 May 2023.  The applicant provided a CoE with his visa application indicating that his course would commence at the end of October 2021.

    Did the applicant comply with Condition 8202?

21. 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 full time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

22. In the present case, the applicant’s visa was cancelled on the basis the applicant was non-compliant with a condition of the visa because he was not enrolled in a full time course.  The applicant does not dispute the non-compliance, and the Tribunal is satisfied that the applicant was non-compliant in the manner specified in the NOICC.

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

    Consideration of the discretion to cancel the visa

24. 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 Procedural Instruction ‘General visa cancellation powers’.

    Purpose of the visa holder’s travel and stay in Australia and whether he has a compelling need to remain in Australia

25. The applicant has resided in Australia as the holder of a student visa, as the primary visa holder, from 2016 to 6 March 2023.  He  completed a Certificate IV in Tertiary Preparation in 2018; a Diploma of Science (Computing/IT) in 2019; and a Certificate IV in Business Administration in 2021.  He said at the Tribunal hearing that he was about halfway through a Business Diploma when he was granted another student visa on 13 October 2021 to continue his studies.  The applicant has not commenced, recommenced or completed any course of study since the visa was granted. 

26. On 17 January 2023, the applicant applied for a subclass 500 visa, as a subsequent entrant and secondary applicant, on the basis of being a member of the family unit (de facto partner) of the primary holder of a student visa.  The applicant gave oral evidence at the hearing that he was aware, and concerned, that he had been non-compliant with the conditions of the student visa he held at the time, that had been granted on 13 October 2021.  He partner suggested that he should make the application (in January 2023) as a secondary applicant on her student visa so he could work towards recommencing his study, with the long term plan being that he would eventually be able to apply for his own student visa again as the primary applicant.

27. The primary reason for the applicant’s travel and stay in Australia is for the purpose studying, which requires among other things that he is enrolled in a full-time course.  As a secondary applicant, the applicant is not required to study.  In this regard it may be that the purpose for his stay in Australia has changed.  However, in his oral evidence at the hearing the applicant was definite that the reason he applied as a secondary applicant for a student visa in January 2023 was because he wants to recommence study when he feels better.  The Tribunal has considered both purposes for the applicant’s stay in Australia, that is, to study, and to reside with his de facto partner to decide if there a compelling need for the applicant to remain in Australia. 

28. The applicant’s study history is not particularly impressive; it was satisfactory up until 2021, but since 29 October 2021 the applicant has not studied.  The Tribunal is prepared to accept, on the face of it, that the applicant and his partner are in a de facto relationship for the purpose of considering whether there are compelling circumstances for the applicant to remain in Australia, if not for the primary purpose of studying, to be with her.  At the hearing, the applicant was asked about his partner’s study.  He said she is an overseas student studying a Bachelor of Commerce at Curtin University and that her course will finish in around June 2024, which is in about six months’ time.

29. The Tribunal has considered the applicant’s circumstances.  It is acknowledged and accepted that the applicant would prefer to remain in Australia.   On the basis that he has not been enrolled in a course of study since October 2021, and that his de facto partner will finish her degree in six months, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    The extent of compliance with visa conditions

30. The non-compliance with condition 8202, not being enrolled in a course of study since October 2021, bearing in mind that the applicant was the primary visa holder of a student visa, is significant non-compliance.  There is no information before the Tribunal that suggests the applicant has been non-compliant with any other of his visa conditions.  However, the significance of the non-compliance is not outweighed by the applicant’s overall compliance with other visa conditions and no positive weight in favour of the applicant is given on this point.

    The degree of hardship that may be caused

31. The Tribunal has considered the financial, psychological, emotional or other hardship that may be caused to the applicant as a result of cancellation

32. The applicant was asked at the Tribunal hearing what hardship he says he will suffer as a result of the visa cancellation and said that the hardest part for him will be that he cannot continue his study in Australia, which will be a disadvantage for him because it ‘is best in the world in general’. 

33. The applicant said that he already has a Certificate IV in Information Technology that he completed in 2018 and, on that basis, he had approached schools in Perth to see if he could apply to study further.  He said he had already studied IT, which is of more interest to him, but his parents pressured him to switch to business studies, in late 2020 or early 2021.

34. At the scheduled hearing, the applicant frequently referred to his mental health starting to deteriorate from the time he learned of the death of his grandmother.  It is not in dispute that the applicant’s grandmother passed away on 23 October 2021, which very unfortunately is the applicant’s birthday.  A death certificate has been provided to the Tribunal.  The applicant gave oral evidence that his brother informed him of the passing of his grandmother about three or so weeks later, in around mid-November 2021.

35. The applicant has provided a report from a registered psychologist dated 28 November 2023.  In summary the report includes that the applicant:

    owas referred ‘for a psychological assessment in regard to his psychological state from the beginning of 2021 until the end of 2022’ … ‘to explain the reason for the gap in his studies’.  The information on which the assessment is based is stated as having been ‘gathered’ during the assessment interview.  In the report, the dated of assessment is 21 November 2023.

    ohad COVID-19 in August 2021

    obroke up with his girlfriend in 2021

    olearned his grandmother had died in Vietnam and did not attend classes during the ‘grieving period’

    oattempted to contact the school to discuss his study arrangements but his calls were not followed up

    ohad to take on a part time job as a waiter to pay his rent, which left him physically exhausted, as the pandemic had affected his parents’ income and ability to support him financially

    osuffered sleep disturbance and would often sleep all day

    owas feeling ‘helpless’, ‘lonely’ and ‘isolated’ because of all these things

    ostarted a new relationship in 2022, he and his girlfriend move in together and bought a dog and he ‘began to notice an improvement in his mood’

    ohaving started communicating with his parents again, felt ready to recommence study, but ‘was quickly overwhelmed with anxiety after receiving a notification from immigration regarding his visa status’ which was an outcome he was ‘not expecting’

    odenied ‘any history of self-harm or suicidal ideation’

    opresented at the assessment with a ‘flat affect and depressed mood’ and had ‘little insight into his condition’

    otold the psychologist that he had been ‘feeling depressed’ for two years and during that period had lost interest in most activities and had developed a sleeping and eating disorder

    owas assessed by the psychologist, on the basis of the results of a Kessler-10 (K10) self-reported questionnaire, to be ‘indicative of a High level of psychological distress, consistent with a diagnosis of depression and/or anxiety disorder’.

    oDeveloped these symptoms as a result of the death of his grandmother, COVID-19 restrictions and his relationship breakdown in 2021.

    oprovided, attached to the psychologist’s report, a number of papers or journal articles including in relation to depression, depressive symptoms, ADHD and anxiety.

1. While claiming no medical expertise whatsoever, the applicant presented at the hearing as a person who appeared to be anxious and emotional about his situation.  The Tribunal accepts that it is likely that the cumulative effect of the negative experiences he suffered from 2021 affected the applicant’s mood and ability to be fully functional in respect of commencing and being enrolled in a course of study while he was the primary visa holder of a student visa from 13 October 2021.

2. However, it cannot be overlooked that the applicant self-reported the symptoms of his mental health condition and the causes, and that he had contracted COVID-19 twice over two years after these events had occurred.  There has been no medical evidence provided that the applicant has been diagnosed with or treated for depression, anxiety, an eating or sleeping disorder or COVID-19.  That said, the Tribunal is not suggesting the applicant, to any degree of certainty, did not suffer symptoms consistent with these conditions or illnesses at various points in time, during or around the period of non-compliance.  The applicant was asked at the hearing whether he had taken any medication for any of the issues or conditions he claimed to have suffered over the last two years and said he sometimes took Panadol.

3. The Tribunal accepts that the applicant is likely to suffer some degree of hardship as a result of cancellation.  In 2021, the applicant was partway through a Diploma of Business.  He said he had, prior to that, completed a Certificate IV in Information Technology.  At the Tribunal hearing, the applicant said he wishes to go back to study in the area of Information Technology, not Business.  On this basis, the partial completion of the Diploma of Business is not considered to be a significant hardship, in terms of the applicant not obtaining the qualification, because the applicant gave evidence he does not intend to continue to study in that field.

4. The applicant claims to be in a de facto relationship that commenced in 2022.  It is accepted that separation for someone in a genuine de facto relationship may cause some level of hardship.  However, his partner is also a student and lives in Australia as the holder of a temporary student visa.  The applicant said she will complete her degree at Curtin University in June 2024.

5. The Tribunal acknowledges that it appears the applicant has struggled over the last two years for all the reasons he has given and is satisfied that potential hardships to the applicant have been thoroughly considered.  However, only limited positive weight is given to the matters the applicant himself has described, and which were consistent with those detailed in the psychologist’s report, and to the hardships the applicant says he will suffer as a result of cancellation.

   Circumstances in which ground of cancellation arose

6. Non-compliance commenced on 29 October 2021.  The applicant was supposed to recommence his study, but did not do so.  In addition, he said at the hearing he did not pay his fees but lays the blame for this at the feet of the school because, he says, they did not send him an invoice.  The applicant’s grandmother died on 23 October 2021; this is accepted.  However, the applicant was not informed of this until mid-November 2021.  It is not a satisfactory reason why the applicant could not commence his studies or pay his course fees.  The applicant said he had COVID-19 in the last week of October 2021, but no verifiable evidence has been provided that it was in this particular week that the applicant had one of the two bouts of COVID-19 he claims to have had.  One was in August 2021, with reference to what the applicant told the psychologist, but there is no reference in any other evidence, except what the applicant has said, as to when contracted COVID-19 a second time. 

7. The applicant has given evidence that he tried to contact the school around October 2021 and in 2022 but that his calls were not followed up.  The applicant has given evidence that he simply waited for the school to send him an invoice for course fees but that he did not take any positive steps to check the status of his enrolment.  He said he didn’t know whether he was enrolled or not.  It was put to the applicant at the hearing that perhaps the school did not send him a fee note because he did not commence the course, or attend any classes and he was asked if he wished to comment.  The applicant said he was ‘waiting’, had COVID-19, and when he recovered he had mental health issues.

8. The applicant appears not to have informed the Department of any change to his circumstances, specifically the non-compliance which he does not now dispute, until he received the NOICC, a period of 18 months.

9. Very minimal positive weight is given in the applicant’s favour relating to the circumstances in which his non-compliance occurred.

   The visa holder’s past and present behaviour of the visa holder towards the Department

10. There is no information before the Tribunal that indicates the applicant’s behaviour towards the Department should be of concern.

    Whether there would be consequential cancellations under s 140 of the Act

11. There is no information before the Tribunal that, as a result of cancellation of the applicant’s visa, that any consequential cancellation under s 140 will arise.

    Whether there are mandatory legal consequences

12. As a result of cancellation, the applicant will become an unlawful non-citizen and may be liable for detention under s 189 of the Act and removal under 198 of the Act if they do not voluntarily depart Australia.  The applicant would also be affected by s 48 of the Act, which means the applicant would have limited options for applying for another visa.  The applicant would also be affected by PIC 4013 and, unless compelling or compassionate circumstances exist, would be prevented from being granted another visa for three years.

13. The Bridging Visa A held by the applicant will cease as a result of cancellation.  He may apply for and may be granted another bridging visa in certain circumstances.

    Australia’s international obligations

14. There is no information before the Tribunal, nor any claim that has been made by the applicant, that Australia’s international obligations would be engaged as a result of cancellation.

    If a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

15. The applicant held a subclass 500 temporary student visa.  It is not a permanent visa and this consideration is therefore not applicable.

    Any other relevant matters

16. There is no information before the Tribunal of any other relevant matters that should be considered.

    Conclusion

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

    DECISION

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

    Jennifer Cripps Watts
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.