Ngo (Migration)

[2019] AATA 6197

Ngo (Migration) [2019] AATA 6197 (22 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huy Hoang Ngo

CASE NUMBER:  1901956

HOME AFFAIRS REFERENCE(S):          BCC2018/4307349

MEMBER:David Thompson

DATE:22 October 2019

PLACE OF DECISION:  Perth

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 22 October 2019 at 11:04am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – change of course – deferred Bachelor course – did not finish course – child and ex returned to Vietnam – claim of depression – financial difficulties – status and prospects of a foreign degree – decision under review set aside  

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140
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 24 January 2019 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 as at the date of decision the applicant had not been enrolled in a registered course of study since 4 December 2017, and so was in breach of 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 3 July 2017 to give evidence and present arguments. 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 set aside.

   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.

7. It is convenient at this point to consider the applicant’s evidence. Prior to hearing, the applicant provided the Tribunal with a copy of the delegate’s decision record, dated 24 January 2019. On the day of hearing, the applicant provided the Tribunal with copies of the following documents:

   a.a certificate of business registration – proprietary limited company, in respect of a company known as Peerage Investment and Development Joint Stock Company registered in the Socialist Republic of Vietnam (Vietnamese language original, with certified translation);

   b.the applicant’s birth certificate (Vietnamese language original, with certified translation);

   c.a divorce order dated 27 March 2018 issued from the Federal Circuit Court of Australia, in proceedings (P)MLC1752/2018 between the applicant and Ms Tran Thi Huyen Trang;

   d.an undated certificate of English Language Proficiency awarded by Holmes Institute to the applicant in respect of an IELTS preparation course held between 30July 2012 and 8 March 2013;

   e.a certificate of attendance, dated 6 March 2014, issued by Holmes Institute in respect of the applicant’s attendance at the IELTS preparation course held between 30July 2012 and 8 March 2013;

   f.a certificate of completion of a Certificate III in Business issued to the applicant by Baxter Institute and dated 16 April 2015, with record of results attached;

   g.a certificate of completion of a Certificate IV in Business issued to the applicant by Baxter Institute and dated 2 September 2015, with record of results attached;

   h.an Account Balance Confirmation Letter from HD Bank, in the Vietnamese and English languages, confirming an account balance in the name of Bui Thi Kim Loan (the applicant’s mother) equivalent to US$42,918.45 as at 1 July 2019;and

   i.3 photographs of the applicant’s infant son, and one of the applicant’s mother.

   The Tribunal has considered each of these documents, and to the extent that they are relevant has referred to and discussed them in these reasons.

8. The Tribunal has also had regard to the contents of the Department’s file in this matter. The only relevant document contained on that file not appearing in the list above is a copy of the applicant’s email response dated 14 January 2019 to the Department’s Notice of Intention to Consider Cancellation (NOICC) dated 20 December 2018. The Tribunal has also taken that document into consideration in reaching its conclusions in this matter.

9. The applicant’s evidence at hearing, and as it emerges from the documents listed above, is summarised in paragraphs 10 to 20 below.

10. The applicant is a citizen of the Socialist Republic of Vietnam. He is the child of divorced parents. He was brought up largely by his mother, who is a businesswoman.

11. The applicant first arrived in Australia on 2 June 2012 under a Sub-Class TU-573 Student Visa, in order to complete an English course and then to study for a Bachelor’s degree in business studies. At that time, the applicant had enrolments for each of those courses at Holmes Institute, at that provider’s Melbourne campus.

12. The applicant completed his English course in March 2013. However, rather than commencing his Bachelor of Business studies, he enrolled in and started studying for a Diploma of Information Technology instead, also at Holmes Institute. In doing so, the applicant deferred his enrolment in his Bachelor of Business course until the end of his Diploma of Information Technology course.

13. The applicant failed his Diploma of Information Technology. He ascribed this at hearing to, firstly, the insufficiency of his English skills and, secondly, his realisation that although the course had sounded interesting to him he in fact had no aptitude in the area and no real interest in it. Rather than advancing directly to Bachelor of Business studies, the applicant enrolled in Certificate III and IV in Business at Baxter Institute, and successfully completed both of them.

14. The applicant then enrolled in a Diploma of Business. He did not finish that course. Rather, approximately half way through it he enrolled in a Bachelor of Business course, at Cambridge International College. He commenced that course in March 2016, but ultimately did not find the institution suitable to his needs and transferred into a Bachelor of Business course at Stott’s College.

15. Before transferring to Stott’s College, the applicant met and formed a relationship with Ms Tran Thi Huyen Trang, also a citizen of the Socialist Republic of Vietnam, who was resident in Australia on a student visa.  It was not long before difficulties emerged in their relationship. They decided that it might help matters if they were to have a child together. Ms Tran became pregnant (the Tribunal infers) in or about mid-November 2016, and she and the applicant were married on 9 February 2017.

16. Neither marriage nor Ms Tran’s pregnancy sufficiently ameliorated the difficulties in her and the applicant’s relationship, and they separated before their child was born. Their child, a son, was born on 19 August 2017, after which the applicant became deeply engaged in caring for both Ms Tran and the baby. The applicant had at that stage been studying for his Bachelor of Business degree at Stott’s College for approximately one semester. Because he was so deeply engaged in caring for Ms Tran and their son, he obtained a deferral of his course.

17. Despite the care and support the applicant was giving to Ms Tran and their son, his relationship with Ms Tran did not improve. That relationship finally broke down irretrievably towards the end of 2017, and the applicant’s enrolment in his Bachelor of Business course was cancelled on 4 December 2017. On 27 March 2019, a divorce order was made by the Federal Circuit Court, to take effect on 28 April 2018. In May 2018, Ms Tran moved to Sydney, taking her and the applicant’s son with her. She returned to Vietnam with the child in or about October 2018, and to the best of the applicant’s knowledge is still living there with her family.

18. The applicant described the period from late 2017 to October 2018 as one of crisis for him. He gave evidence that by May 2018 he was in a state of deep depression, and that he remained in that state until October 2018. The applicant was asked at hearing whether he had sought medical help during that period. He said that he had not. When asked why, he said that in his culture men do not talk about such matters as depression. In any event, he had no-one to talk to in Australia other than an aunt, who was busy with her own family. His mother was not working at the time and was short of funds, being in the process of setting up her own business, and had been unable to come to Australia for the birth of the applicant’s son. The applicant said he thought he could have talked to his mother, had she been available, but as matters stood he was on his own and was not even aware that one could approach a doctor for help with conditions such as his.

19. The applicant said that his depression began to lift in October 2018, when he was finally able to speak to his mother and she was able to give him moral support, and that he began readying himself to continue his studies. However (as the applicant later stated in his response to the Department’s NOICC) his mother was not in a financial position to support his studies at that time. It should be noted that the applicant provided documentary evidence at hearing that his mother’s financial capacity had recovered.

20. In late December 2018 the applicant received the Department’s NOICC. He responded by email on 14 January 2019 explaining his situation, but on 24 January 2019 the delegate decided to cancel his visa.

    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 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).

22. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course from 4 December 2017 until the date of cancellation.

23. The applicant has, in giving evidence before the Tribunal, admitted that to have been the case. There is nothing in the evidence before the Tribunal to suggest that his admission was not properly made. 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).

    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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

    The applicant’s purpose in coming to and staying in Australia

25. The Tribunal accepts the applicant’s evidence given at hearing that his purpose in coming to Australia was to undertake business studies, and ultimately to obtain a Bachelor of Business before returning to his home country. The evidence as to the course of the applicant’s studies has been set out above, and the Tribunal accepts that account. Although on the evidence that purpose receded into the background during the applicant’s short marriage, and with the arrival of his son and the breakdown of his relationship, the Tribunal does not consider that the applicant has ever abandoned that purpose. Indeed, he gave evidence at hearing that it is now his purpose to finish his Bachelor’s degree and return to Vietnam to take a role in his mother’s business. The applicant has particular reasons for holding to that purpose, which will be considered below. For present purposes it suffices to say that the Tribunal accepts his evidence as to his intentions and purpose. The Tribunal gives this factor some weight in the applicant’s favour.

    The extent of the applicant’s non-compliance

26. The applicant was in breach of condition 8202 attached to his visa for a period of some 13 ½ months. This is a substantial period of non-compliance, and without more the Tribunal would find that it weighed strongly against the applicant.

27. However, the applicant has given explanations for the length of the period of breach, being the state of depression he suffered between the cancellation of his last enrolment and approximately October 2018, and the temporary financial difficulties his mother was suffering around October 2018, when the applicant’s depression began to lift. Although there is no medical evidence before the Tribunal regarding the applicant’s depression, the Tribunal finds both the applicant’s claim to have suffered from that condition, and his explanation for why he did not seek medical help, plausible in the circumstances (for which there is evidence) and is prepared to accept them. There is some evidence in the form of the document noted at paragraph 7(a) above corroborating the applicant’s claim that his mother was in the process of starting a business during the relevant period. Finally, there is evidence before the Tribunal that the applicant’s mother’s financial position has improved (see paragraph 7(h) above. Given this corroboration, the Tribunal is prepare to accept the applicant’s explanation of the financial impediment preventing him from re-enrolling in his studies in October 2018 and the months following.

28. The Tribunal finds that these explanations ameliorate the extent of the applicant’s breach, and that as a result this factor carries only some weight against the applicant.

    The circumstances in which the ground of cancellation arose

29. The applicant’s evidence as to his short marriage and the birth of his son, and as to the timing of those events, are corroborated by the documentary evidence the applicant has produced, particularly the divorce order noted at paragraph 9(c) above. There is no evidence contradicting the applicant’s account of these events, and the applicant’s demeanour as he was giving evidence on these matters at hearing was that of a truthful witness. The breakdown of the applicant’s relationship with his wife and the anguish it caused him, particularly given his obvious love for his infant son, were matters ultimately beyond his control and matters that properly explain the breach of condition that formed the ground for cancellation. The Tribunal gives this factor considerable weight in the applicant’s favour.

    The degree of hardship that may be caused

30. The applicant was asked at hearing about hardships he or third persons might suffer if his visa was cancelled. The applicant identified two such hardships.

31. Firstly, the applicant stated that if his visa were cancelled, he and his mother would suffer the financial hardship of the waste of the money they have spent on the applicant’s studies and support whilst in Australia. The applicant did not give a figure for that expenditure, but the Tribunal accepts that the total sum would be one of significance to the applicant and his mother.

32. Secondly, the applicant stated that if his visa were cancelled and he had to return to Vietnam without his degree, he would be unable to occupy a role of any significance in his mother’s business and he would forfeit the respect of his community to a large degree. This would be a hardship in itself, but the applicant submitted that more importantly it would make it very difficult for him to obtain access to his son. His evidence was that he has been denied any contact with his son since Ms Tran took him back to her family in Vietnam, and that it is likely that he will have to resort to law to obtain that contact when he returns to Vietnam. He stated that the status and prospects that his possession of a foreign degree would give him would be important matters for a court considering whether to award him access under Vietnamese law, and that he had no confidence of receiving a decision in his favour on this important issue if he could not complete that degree before returning. He went on to state that his priority now is to complete his degree as quickly as he can and return home.

33. The Tribunal is prepared to accept that the applicant and his mother would suffer the first form of hardship he identified, and gives it some weight as a factor in the applicant’s favour. It is a difficult matter to assess the applicant’s claims as to the second form of hardship he identified. It is clear that the applicant’s claim is based on his own view of the law and the way the Vietnamese courts would deal with his claim. It is also clear that the applicant honestly believes this is the case. However, his view is a layman’s view and the Tribunal has no evidence before it indicating whether or not that view is accurate. On the other hand, there is a certain objective logic to the claim. On balance, the Tribunal finds that the applicant’s claim in this respect is plausible but no more certain than that. The Tribunal gives this second claim of hardship some weight in the applicant’s favour.

    Consequential cancellations

34. There is no evidence suggesting that cancellation of the applicant’s visa would involve any consequential cancellations under s.140 of the Act. The Tribunal gives this factor no weight, either for or against the applicant.

    The applicant’s past and present behaviour towards the Department

35. There is no evidence before the Tribunal suggesting that the applicant has behaved in any untoward manner towards the Department, or has been anything but cooperative in his dealings with it. This, up to the date of cancellation, is confirmed in the delegate’s decision record. The Tribunal gives this factor some weight in the applicant’s favour.

    Whether any international obligations would be breached as a result of cancellation

36. Australia is a signatory to the Convention on the Rights of the Child, and in cases where administrative action concerns a child is obliged by Article 3(1) of that convention to take into account the best interests of that child as a primary consideration. Article 7(1) of that convention also recognises the right of a child to “know and be cared for by his or her parents.” This application does not directly concern a child, but the applicant has submitted, in effect, that the cancellation of his visa may impact on his ability to care for and know his child (see paragraph 32 above). The Tribunal has given that submission some weight in its consideration of the effect that cancellation of the applicant’s visa would have upon the applicant. It follows that the same submissions should be given some weight in the context of the effect of visa cancellation on the applicant’s son and his convention rights. The Tribunal therefore gives this factor some weight in the applicant’s favour.

37. There is nothing in the evidence before the Tribunal suggesting that cancellation of the applicant’s visa would result in a breach of any other international obligation.

    Would cancellation carry mandatory legal consequences?

38. If the applicant’s visa were cancelled, he might in due course become an unlawful non-citizen and become liable to be detained pursuant to s.189 of the Act, and removed from Australia under s.198 of the Act if he does not leave the country voluntarily. His options for applying for further visas whilst in Australia would be limited pursuant to s.48 of the Act, and Public Interest Criterion 4013 might prevent him from being granted certain temporary visas for a specific period. Although there are intended consequences of a breach of visa condition under the Act, the Tribunal gives this factor a little weight in the applicant’s favour.

    Other relevant matters

1. There is no other relevant matter to be considered on the evidence before the Tribunal.

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

   DECISION

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

   David Thompson
   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.