Ngo (Migration)

[2019] AATA 6121

Ngo (Migration) [2019] AATA 6121 (17 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Dung Ngo

CASE NUMBER:  1620369

HOME AFFAIRS REFERENCE(S):          BCC2016/3037646

MEMBER:Rachel Westaway

DATE:17 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 17 October 2019 at 6:53pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – family, financial and relationship issues in home country – new relationship in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

CASES

Boettcher v Driscoll [2014] SASC 86

De Angelis v de Angelis [2003] VSC 432

Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 November 2016 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 had not complied with condition 8202, namely the applicant was not enrolled in a registered course. 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 18 September 2018 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 Mr Tsai.

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 supplied the Tribunal with a copy of the delegate’s decision. It outlined that the PRISM records indicated that the applicant was not enrolled in a registered course of study since 14 February 2016. The decision outlined that the applicant was sent a notice of intention to consider cancellation (NOICC) on 16 November 2016. The period of non-enrolment was 9 months.

10. The Tribunal asked the applicant if this is correct and the applicant confirmed he was not enrolled in a registered course for this period.

11. 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

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 Tribunal explained to the applicant that the cancellation of his visa is not mandatory and that it could consider any range of matters the applicant wished to discuss.

14. The applicant explained he returned to Vietnam to propose to his girlfriend and arrange the marriage but it did not work out and it caused him to feel depressed and unable to concentrate and study.  The relationship broke down in April 2015. He also stated that his family business went into debt and consequently he could not fund his studies. He accepted it was wrong to remain in Australia and not in a registered course studying but did not want to bring shame to his family. He stated that his family business no longer faces financial issues.

15. The applicant explained to the Tribunal that he came to Australia and studied English at Oxford College in August 2014. This was the first time the applicant had left Vietnam by himself. 

16. His parents suggested he go to Australia to study. There are three children, all males in his family and he is the first to study abroad. He is the youngest.  One brother live in Vietnam and the other in South Korea. The brother in South Korea is working.

17. The applicant studied a degree in architecture in Vietnam at Hanoi Business and Technology University. The applicant stated he scored 20 - the lowest satisfactory score is 17 and the highest is 25. The applicant and his parents were happy with his results.

18. He worked in his parent’s friend’s business in building and construction. They built residential and commercial properties. His job initially was in project management. He then went into an apprenticeship role drafting and then he applied to study overseas. He worked there for two months. He liked the work. It was an unpaid apprenticeship.

19. He came to Australia to improve his English and to study business management and then return to Vietnam to work with in the building business and also assist his family’s business. He said that he was told he would have a job there and it would be paid.

20. When he first came to Australia he claims to have really liked the country and he heard about the famous opera house in his studies and he went to see it. He said initially he went to Canberra University to study a Master’s degree in Business; however he never commenced the course. He claims to have then transferred to Oxford College for 4 months and then he stopped studying.

    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

21. The term “compelling need” is not defined in the PAM3. I take it to have its ordinary meaning, having regard to both the context and the purpose of the PAM3 and s 116 of the Act.[1]

    [1] Project Blue Sky Inc v Australian Broadcasting Authority (1998) HCA 28

22. The term compelling was the subject of detailed consideration by Crennan J (as her Honour was then) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs[2] (“Paduano”).  Her Honour set out the jurisprudence in relation to the words “compel” and “compelling” and the various dictionary meanings and stated, relevantly:

    [2] (2005) 143 FCR 204

23. “At [35] A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.

24. Commenting further on the adjective “compelling” in the Regulations, at [37], Crennan J said (emphasis added):

25. The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’.

26. “Need” is a relative concept.[3]  It has been described as different from “want”. Need has been said to be a more flexible word than it may first appear. “In need of” plainly means more than want, but if falls far short of “cannot survive without.”[4]  Need and want are not interchangeable.[5]

    [3] De Angelis v de Angelis (2003) VSC 432 per Dodds Streeton J at [45]

    [4] See Lord Neuberger of Abbotsbury, in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]

    [5] Boettcher v Driscoll (2014) SASC 86 at [41] per David J

27. The Tribunal accepts that the applicant’s initial purpose of travel to Australia was to study and that he enrolled in a registered course in accordance with that purpose. He was granted a subclass 573 Higher Education visa with the intention of studying. He completed the Certificate II in EAL on 14 February 2016 however has not completed any other courses. His enrolment was cancelled as his attendance was under the required 80%. He did have the ability to appeal the decision to the course provided but did not.

28. He believes he needs an Australian degree to have an added advantage over other people in Vietnam. The Tribunal accepts that a degree from Australia may well be considered more prestigious and differentiate him from other applicants. However, the applicant did tell the Tribunal that he already has a job offer at his former building company and even if this does not eventuate, he has his family business to work in.

29. Having regard to the applicant’s evidence and his NOICC response, namely that he would like to continue to study or he will bring enormous shame to his family and that Australian qualifications are better and assist him in obtaining a job, whilst the Tribunal accepts that the applicant came to Australia with the intention of studying, it does not consider the applicant has demonstrated a compelling need to travel or stay in Australia. Accordingly, the Tribunal gives only marginal weight towards the visa not being cancelled.

    Circumstances in which the ground for cancellation arose

30. The applicant explained in his response to the NOICC and separately to the Tribunal that he had two main reasons why he was in breach of condition 8202 and subsequently had his student visa cancelled.

31. In his response to the NOICC[6], the applicant explained that he arrived in Australia on 9 August 2014 and commenced an English course.

    [6] DIBP BCC2016/3037646 ff29-30

32. He travelled to Vietnam in December 2014 to propose marriage to his girlfriend. He explained that he had been going out with his girlfriend since they were students together in 2010 in Vietnam and his parents approved of the relationship.  He said that her parents did not agree to the marriage as they were living too far apart with the applicant in Australia. The Tribunal asked the applicant why he did not apply to have her come as a secondary applicant on his visa and he said that her family did not know it was an option and she had a stable career in Vietnam. He stated that his relationship with his girlfriend ended and he was unable to concentrate. They remained in contact when he returned to Australia but the relationship faded away.

33. He said he resumed the English course but he did not complete the course. He stated that he had no motivation and felt depressed and it took him about 4-5 months before he felt better. He acknowledged that he dropped out of lessons and then he failed. This occurred in Melbourne around May or June 2015.

34. He confirmed that his parents are aware of the visa cancellation and they advised him to stay firm and wait on the results of the Tribunal and to continue his course. He tried to start another English course. The applicant was asked if he had any evidence of his results or enrolment in the course as he claims to have completed 50% of the course.

35. He said that in addition to this, his family business was struggling and his parents could not afford to send money for the school fees. It was a difficult period which lasted for 7 to 9 months. He said he was initially not aware of the financial issues. He said that he received some papers about the debt from his parents around December 2015. The Tribunal asked why they would send him this. He said that it was given to him for evidence around the time of the cancellation in December 2016. He said he attempted to enrol in a third course unsuccessfully. He claims that the cancellation of the COE added further to his stress levels.

36. The Tribunal asked the applicant why he did not return to Vietnam until the situation improved and he said that his family could not afford to help him with living and he wanted to talk to people in Australia and stay. His submission to the Department stated he worked part time hoping to get back on track quickly and resume his studies.

37. The Tribunal accepts that the applicant’s family’s financial situation created a problem for the applicant in paying his fees. The Tribunal also accepts that the collapse of the applicant’s relationship with his girlfriend would also cause the applicant distress and impact on his ability to concentrate. The family’s finances were not within the realms of control of the applicant however the applicant’s response to the situation was something he could control. The applicant’s relationship breakdown is something experienced by many people and whilst distressing the Tribunal considers the applicant’s response to this as the key issue.

    The applicant had the ability to ensure he did not breach conditions on his visa and could have returned to Vietnam until his financial situation improved and his ability to concentrate improved. Instead, the applicant made a conscious decision to remain in Australia. For these reasons, the Tribunal does not accept that the circumstances in which the breached occurred outweigh the seriousness of the breach and the applicant’s apathy in correctly the situation by returning home. The Tribunal gives minimal weight in favour of the applicant and more weight to the breach and cancellation.

    the extent of compliance with visa conditions

38. Based on the evidence before it, and subject to the discussion herein, the Tribunal understands the applicant had been compliant with other visa conditions.

39. The applicant provided reasons for non-compliance stating that his relationship with his girlfriend broke down in April 2015 and he was unable to study and his family’s business was struggling financially and he could not afford the fees. He claims his family’s financial situation has improved and this would no longer be an issue.

40. The applicant initially commenced a Certificate II in EAL at Barkly International College on 18 August 2015 and completed this on 14 February 2016. He has not completed any further study since being in Australia. The Tribunal notes that the applicant provided a copy of the delegate’s decision which outlined that the applicant was provided with counselling which incorporated strategies to improve his attendance.  The applicant’s attendance remained below 80% and consequently his COE was cancelled on 17 April 2016.

41. He supplied the Department with a copy of financial documents[7] indicating a savings account balance of VND700,000,000 in a term deposit expiring 10 February 2017 with AgriBank. Other documents which were provided to the Department were reviewed but as they were not translated the Tribunal could not give the contents any weight. Notwithstanding this, the Tribunal accepts that the applicant’s family had financial difficulties that have now been resolved and that as the applicant has stated they would be able to support him financially.

    [7] Ibid ff:33-36

42. The purpose of a student visa is to enable the visa holder to study. The breach of condition 8202 for 9 months is considered by the Tribunal to be significant non-compliance. The applicant had every opportunity to return to Vietnam until he was ready to resume his studies but he consciously elected not to. 

43. There is nothing further before the Tribunal to suggest the applicant has not been in compliance with other conditions; however the Tribunal expects that all applicants comply with conditions on their visas and as such the Tribunal gives this only minimal weight in the applicant’s favour.

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

44. The applicant explained he is 30 years old and if his visa is cancelled he will be frustrated as he cannot finish his course. The Tribunal explained he could study a Masters of Business in Vietnam or apply to return to Australia in the future. The applicant explained that he wants to improve his English and he has a chance to learn from the great architecture in Australia and the quality of the courses in Australia.

45. The applicant said that it is his dream to have qualifications from Australia. He said he has never faced hardship and issues before. He explained that things are different and he stated he has a new girlfriend in Australia.

46. The applicant confirmed she is from Vietnam and she is studying here. She studies in Perth. However he was unable to confirm her course or where she is studying. He said that they have been going out for two years and they talk over the phone. He said that she has been in Australia for 3 years and she has one more year to complete her studies.

47. He explained that the hardship experienced will be by him and his parents and that his parents will want him to follow his dream but maybe he will return and the salary or the position may not be available. He said that his parent’s friends may not employ him because he does not have a qualification. He cannot fulfil the position because he has not completed his Masters of Business as they may not trust him.  He was asked if there was any reason why he could not study in Vietnam. He said that the criteria to undertake a Masters is that he must be fluent in English and have a management qualification.

48. Based on information before it, the Tribunal accepts that if the applicant’s visa is cancelled, he or his family may suffer some limited hardship. For instance, he would have no work rights and therefore no legal ability to work in Australia. He also may not be able to engage in further study in Australia. The Tribunal understands that the applicant and his family would be disappointed.

49. The Tribunal has considered whether the applicant could study in Vietnam and does not accept that the applicant would not be able to undertake a Masters Degree in Vietnam or undertake one by correspondence. Whilst this may not be the preferable option for the applicant, it does not mean that the applicant has no further options. The Tribunal notes that the applicant would have improved English language skills after being in Australia since 2014.

50. The Tribunal accepts that the applicant’s employment offer may not be available with his family friend; however the applicant stated his family have a business and he wanted to work in this too. The Tribunal does not accept that the applicant’s family would not employ him if he struggled to find employment elsewhere.

51. The Tribunal accepts that the applicant has a girlfriend from Vietnam studying in Australia and that if his visa is cancelled they would be temporarily separated until she returned to Vietnam. However based on his explanation her course may have finished by the time of this decision and as such the applicant would not be separated for long.

52. The Tribunal accepts the applicant’s age and appreciates that a cancelled visa would continue to delay him in obtaining a further qualification and provide frustration. However this is the natural consequence of a cancellation.

53. The Tribunal has considered all of the concerns outlined by the applicant equating to varying degrees of hardship he may face if the visa is cancelled. The Tribunal accepts that some degree of hardship will be faced by applicants when a visa is cancelled. These are often the natural consequences of a cancellation. Whilst acknowledging all of the applicant’s concerns, the Tribunal gives them minimal weight against cancelling the visa based on the significance of the breach, namely nine months of non-enrolment. The applicant did not attempt to rectify his situation by informing the Department and returning to Vietnam until he could study again.

    Past and present behaviour of the visa holder towards the department.

1. The applicant appears to have co-operated with the Department and has responded to the NOICC. There is no adverse evidence against the applicant in this regard. I give this some weight towards not cancelling the visa.

   Whether there would be any consequential cancellations under s 140

2. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled and as such I give this factor no weight.

   Australia’s international obligations

3. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. I therefore give this factor no weight.

   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, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

4. The Tribunal recognises that, if the visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. However, he may be eligible for a bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalise his affairs in Australia before departing.

5. If his visa is cancelled, the Tribunal also recognises that he will be subject to s 48 of the Act which means he will have limited options when applying for further visas, including the possibility that he may not be granted a temporary visa for 3 years from the date of the cancellation.

6. The Tribunal considers these are the intended consequences of the legislation and the applicant has stated that he eventually intended to return to Vietnam to work in his parent’s business. There is no indication that he would become unlawful or be subject to detention so I give this factor no weight.

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

7. This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.

   Any other relevant matters.

8. There appear to be no other relevant matters of significance in relation to the present application for review.

9. The Tribunal provided the applicant with a short adjournment during the hearing. On return the applicant was asked if he wished to provide any further information to the Tribunal. The applicant’s girlfriend was in attendance and stated that she thinks the applicant has not understood some of the questions and has therefore answered them incorrectly.

10. The Tribunal explained that the applicant was asked on numerous occasions if he understood the questions. He stated yes. The Tribunal stated that the applicant provided answers to each question in the context of the question and at no point was the Tribunal of the view that the applicant through his answers was not clear or did not understand the questions. As such the Tribunal has not considered this as an issue.

11. Considering the circumstances both individually and as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Rachel Westaway
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

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

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

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

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

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

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

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

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

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

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

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

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