Nguyen (Migration)

[2024] AATA 2198

Nguyen (Migration) [2024] AATA 2198 (14 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cong Hau Nguyen

REPRESENTATIVE:  Mr Tung Duy Nguyen (MARN: 1575839)

CASE NUMBER:  2302377

HOME AFFAIRS REFERENCE(S):          BCC2022/4247815

MEMBER:Wendy Banfield

DATE:14 June 2024

PLACE OF DECISION:  Canberra

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 14 June 2024 at 1:40pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – multiple health issues – impact of the COVID-19 restrictions – financial hardship – previous university disallowed release – decision under review set aside           

LEGISLATION

Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 48, 116, 140
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 15 February 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 the visa holder no longer met the requirement of subclause 8202(2)(a) as he did not comply with a condition of the visa. The visa was granted subject to condition 8202, which required the applicant to be enrolled in a full-time registered course. Information before the Department indicated the applicant had not been enrolled in a full-time registered course from 16 November 2021 until he was issued with a Notice of Intention to Consider Cancellation on 6 February 2023. 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 22 April 2024 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.

5. The applicant submitted the following evidence to the Tribunal:

   ·     Department of Home Affairs (the Department) notification and decision record dated 15 February 2023.

   ·     Copy of the applicant’s Vietnam passport biometric information.

   ·     Written submission dated 22 April 2024.

   ·     Confirmation of Enrolment (COE) for a Swinburn Foundation Course from 29/05/2020 to 05/02/2021.

   ·     Academic Transcript from Swinburn Institute 2020 to 2021 dated 25 January 2022.

   ·     COE for a Diploma of Design from 22/02/2021 to 12/11/2021.

   ·     COE for a Diploma of Design from 28/06/2021 to 04/02/2022.

   ·     COE for Bachelor of Design from 01/03/2022 to 31/12/2023.

   ·     Letter of Offer for a Bachelor of 3D Design and Animation from Torrens University dated 7 April 2022.

   ·     Payment schedule notification for $6,000 to Torrens University dated 24 February 2022.

   ·     Emails confirming release from Swinburn Institute dated 9 March and 6 April 2022.

   ·     Statement of Account from Torrens University for 2022.

   Evidence at the hearing

6. The applicant advised he came to Australia in 2017 to attend high school and to obtain a degree qualification. The applicant said he achieved a low ATAR result when he completed high school in 2019. He was enrolled in a university foundation course in 2020 which was affected by COVID-19 restrictions. The applicant stated he spent two years in front of a screen and lost motivation. He also lost his part-time job and experienced a relationship breakdown. The applicant agreed he had not taken leave from his studies.

7. The Tribunal asked about the applicant’s activities when he was no longer studying. He said he had to work and support himself. The applicant declared that after November 2021 he asked his agent to arrange his enrolment at Torrens University but was not granted a COE because no transcript of previous studies had been provided. He said he paid $6,000 towards the course fees. According to the applicant, he could not start at Torrens until 2023 as he needed to be released from Swinburn Institute. The applicant said if his visa is not cancelled, he will try and complete a bachelor’s degree in design and animation.

8. The Tribunal asked the applicant why he had not responded to the NOICC that was sent to him in February 2023. He said he did not have any intention not to respond but did not check his emails frequently enough. The applicant said if his visa is cancelled it will disappoint his parents as they have supported him financially and it will affect his future.  He admitted he was at fault and there were grounds to cancel his visa.

   Written submission - 22 April 2024

9. The applicant’s representative provided a written submission outlining the applicant’s circumstances as a student in Australia. The submission addressed reasons why it is claimed the applicant’s visa should not be cancelled.

10. 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

11. 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) of the Act, the visa may be cancelled.

    Did the applicant comply with Condition 8202?

12. 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).

13. In the present case, the applicant’s visa was cancelled on the basis he was not enrolled in a full-time registered course.

14. Following his completion of secondary school in 2019, the applicant enrolled in a foundation course at Swinburn University leading to a Bachelor of Design. However, he did not continue studying. According to the Department’s decision submitted in evidence, the Provider Registration and International Students Management System (PRISMS), which provides the study records of international students, the applicant had not been enrolled in a full-time registered course since 16 November 2021. Therefore, he did not comply with the requirements of subclause (2)(a) of condition 8202.

15. The Tribunal wrote to the applicant on 6 February 2023 advising an intention to consider cancellation and inviting the applicant to respond. The applicant did not respond, and his student visa was cancelled on 15 February 2023.

16. At the Tribunal hearing the applicant explained the circumstances that led to not being enrolled as student. He agreed he had not been enrolled in a full-time registered course of study after his enrolment at Swinburn University was cancelled.  The applicant claimed he had attempted to re-enrol as a student but did not dispute the Department’s findings.

17. 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

18. 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’.

    ·     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

19. The applicant submitted he came to Australia as the holder of a student visa to attend secondary school and obtain a degree. The applicant did complete Years 11 and 12 in Australia and enrolled in university foundation studies leading to a Bachelor of Design. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study and gain tertiary qualifications.

20. The applicant provided evidence that he plans to re-commence his tertiary studies at Torrens University studying a Bachelor of 3D Design and Animation. The Tribunal accepts the applicant will benefit from studying and gaining qualifications in Australia and has given some weight to it in his favour, however, the Tribunal is not satisfied the applicant has demonstrated a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

21. There is no evidence before the Tribunal that the applicant had not complied with other visa conditions and the Tribunal has given some weight in his favour to this consideration.

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

22. The Tribunal considered any hardship that may arise because of the applicant’s visa being cancelled. The applicant submitted he is planning to re-enrol in a university course if his visa is not cancelled. He provided evidence of having applied to Torrens University and claims he paid an initial fee of $6,000.  If his visa is cancelled the applicant will be unable to continue studying in Australia. Based on the evidence provided, the Tribunal accepts the applicant will suffer some degree of hardship caused by the cancellation of his visa.

    ·     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

23. The applicant’s visa was cancelled because he was not enrolled as a student for a significant period of 14 months. The applicant said he was initially successful studying the foundation course that would have led to a Bachelor of Design. However, he lost motivation because of isolation due to COVID-19 and his grades suffered. The applicant claimed he had relationship issues in 2020/2021 and was referred for counselling but could not book an appointment due to the pandemic.

24. He claimed Swinburn University did not allow him to continue studying in 2021 so he sought to be released from that provider. In a written submission it was claimed the applicant attempted to re-enrol at Torrens University but was not granted a COE despite paying a $6,000 fee. The representative pointed to the applicant’s youth and lack of family support as a contributing factor in the circumstances that led to his visa being cancelled. According to the evidence, after the applicant’s visa was cancelled, he did not have study rights and could not continue as a student at that time.

25. In considering the applicant’s circumstances, the Tribunal was concerned about the length of time he was not enrolled which was a breach of visa conditions. Despite his youth, the applicant had attended high school in Australia as an international student and would have been aware what was required of him as a student visa holder. The Tribunal was also concerned the applicant remained in Australia while failing to comply with visa conditions but accepts the option to depart would not have been open to him following border closures between 20 March 2020 and 21 February 2022. The Tribunal is not satisfied the grounds for cancellation were beyond the applicant’s control, however, the Tribunal placed weight on the applicant’s evidence at the hearing in which he accepted responsibility for his visa being cancelled. The Tribunal has ongoing concerns about the applicant’s commitment and abilities regarding tertiary education but accepts he is sincere in wanting to resume studying towards a university degree.

    ·     past and present behaviour of the visa holder towards the department

26. The applicant did not respond to the Department’s Notice of Intention to Consider Cancellation that was sent to him on 6 February 2023. He claimed he did not check his emails often enough but also that he was “too scared” to respond. While the applicant did not reply to the Department which resulted in his visa being cancelled, he did attend a hearing with the Tribunal where he answered questions and presented arguments in his case. The Tribunal places neutral weight on his past and present behaviour.

    ·     whether there would be consequential cancellations under s.140

27. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

28. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention because of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation would impact the applicant’s plans to resume studying.

    ·     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

29. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.

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

30. The Subclass 500 Student Visa is not a permanent visa.

    ·     any other relevant matters

31. The Tribunal did not consider any other relevant matters.

    Conclusion

32. The Tribunal has considered the evidence and circumstances of the applicant individually and cumulatively. The Tribunal finds there are several aspects of the applicant’s case that weigh against him, however, on balance, the Tribunal considers he should be given the opportunity to demonstrate his academic plans are sincere and he is a genuine student. The Tribunal is prepared to accept that the applicant’s explanations and subsequent behaviour are sufficient reason for the visa not to be cancelled.

33. Having assessed the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Wendy Banfield
    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.