Nguyen (Migration)

[2020] AATA 5783

Nguyen (Migration) [2020] AATA 5783 (23 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gia Bao Nguyen

CASE NUMBER:  1920417

HOME AFFAIRS REFERENCE(S):          BCC2019/111771

MEMBER:Stephen Conwell

DATE:23 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 23 October 2020 at 5:44pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – applicant has not undertaken any study at the bachelor’s level – lengthy period of non-enrolment – lack of academic progress –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994 (Cth),  r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 July 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) of the Act on the basis that the applicant was determined not to be a genuine student. 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 Tribunal exercised its discretion to hold the hearing by telephone.

4. The hearing was held during the coronavirus (COVID-19) pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. It also considered the consequences of further delay if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting the review hearing by phone.

5. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

6. The applicant appeared before the Tribunal on 22 October 2020 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. The applicant was represented in relation to the review by his registered migration agent who did not attend the Tribunal hearing.

8. 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

9. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

10. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

11. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

12. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

13. The Department of Home Affairs (Department) granted the applicant a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 26 February 2016. His original course of study comprised of a package of subjects commencing with English and Foundation studies leading to a Bachelor of Business.

14. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 20 March 2019, the applicant was advised that information before the delegate indicated he is not, or is likely not, to be a genuine student.

15. The applicant responded to the NOICC letter by written statements dated 27 March, 1 April and 2 April 2019, which can be summarised as claiming:

    ·   he found it difficult to adapt to the demands of being an overseas student but his outlook improved when he met a fellow student in his English class who became his girlfriend;

    ·   in early 2017, he returned to Vietnam for a few weeks’ holiday; upon his return to Australia, he learned that his girlfriend dating someone else, which she subsequently confirmed via text. He was left heartbroken and depressed and lost his focus on his studies;

    ·   he failed tests in his Foundation course at Latrobe University and arranged a transfer to a cooking class at Acknowledge Education.  His parents were not happy with this change of course as they wanted him to study business. This exacerbated his depression, making it difficult for him to concentrate on studying. Furthermore he claims that some of his classmates were unfriendly to him, which made him unhappy and stressed, so he decided to quit attending school;

    ·   he consulted a doctor and psychologist which helped with his depression;

    ·   he requests a second chance to study, fulfil his dream and rectify his past mistakes.

16. In support of his statement, the visa holder tendered:

    ·   a support letter from Dr Sandra Nguyen dated 28 March 2019, a clinical and counselling psychologist.

17. In the decision record the delegate noted:

    ·   information on the Provider Registration and International Student Management System (PRISMS), indicated that the applicant has only completed four English prerequisite courses since his arrival in Australia on 6 March 2016. He changed his study pathways three times which the delegate concluded was for the purpose of retaining his Student visa as opposed to meaningfully progressing in his studies;

    ·   the applicant was not enrolled in any registered courses between 12 June 2018 and 25 February 2019, a period of over eight months, whilst he held the Student visa and remained onshore.  He only enrolled in a package of three courses after being contacted by the Department on 20 February 2019.  The delegate concluded that the applicant was lacking a genuine intention to engage in study and progress academically;

    ·   since his arrival in Australia the applicant has not undertaken any study at the bachelor’s level in the higher education sector, the level of study for which his Student visa was granted.

18. Student visas (subclass 570 – 574) are granted for the purpose of studying towards, and achieving, an educational qualification in Australia.  That the applicant would give priority to his ongoing enrolment, and participation, in a registered course of study was the principal basis for the grant of his visa and such a priority is expected of any genuine student.

19. The applicant’s lack of academic progress, his lengthy period of non-enrolment whilst choosing to remain onshore on a visa solely for the purpose of his engagement in study, indicated that the applicant is not a genuine student.

20. At hearing the applicant reiterated much of the written statements submitted in response to the NOICC. He referred to his difficulties in adjusting to life and study in Australia; he claimed to have been depressed and stressed for much of his time onshore – first from the pain of a broken relationship, then from the family stress caused by his change of study pathway.  However when asked by the Tribunal why he did not at any point seek a deferment of his studies and return to Vietnam, he responded that he was young at the time and not aware that he was able to seek a deferment; at any rate he did not wish to depart Australia without achieving some educational qualification.

21. The applicant further stated at hearing:

    ·   that apart from his return visit to Vietnam in early 2017, he has not departed Australia;

    ·   his family are in Vietnam and comprised of his parents and younger brother;

    ·   he rents a room in a share house and the rent is paid by his parents;

    ·   he has never worked whilst in Australia as his parents finance his living expenses and his current girlfriend of the past year also support him financially;

    ·   since he is no longer studying nor working he spends his considerable spare time staying at home, spending time with his girlfriend and using his mobile phone;

    ·   he consulted Dr Sandra Nguyen two or three times but felt it didn’t help much. No medication was prescribed;

22. The Tribunal accepts that many international students experience some difficulties in adjusting to the academic and cultural challenges of studying overseas.  The Tribunal  has regard to the youth of the applicant at the time of his arrival in Australia and accepts that the applicant felt lovesick as a result of his broken relationship – but such are the vicissitudes of life for most people, particularly in their youth.  There is nothing unusual or particularly calamitous about the applicant’s experience.  As a consequence the Tribunal finds the applicant’s claim to have experienced depression to such a degree that it rendered him incapable of engaging in his studies, to be unconvincing.

23. The Tribunal is not prepared to accept these claims without probative documentary evidence.  In the absence of such, the Tribunal does not accept the applicant’s assertions that he was depressed either as a result of his broken heart, his parents’ disappointment or for any other reason.

24. As conceded at hearing, the applicant has only completed four prerequisite English courses in Australia since the grant of his Student visa on 26 February 2016. His lack of academic progress and lengthy period of non-study whilst remaining onshore suggest to the Tribunal that the applicant is not a genuine student. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.1161)(fa)(i) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

25. 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 purpose of the visa holder's travel to and stay in Australia

26. The Tribunal is satisfied that the applicant travelled to Australia with the original purpose being to study higher education. The Tribunal notes that the applicant has completed just four prerequisite English courses since the grant of his Student visa on 26 February 2016.  Furthermore between 27 October 2017 and 25 February 2019, he was not enrolled in bachelor’s level course, the level of study for which his Student visa was granted.

27. The applicant’s frequent change of courses suggests to the Tribunal that he obtained enrolment for the purpose of retaining his Student visa rather than being motivated by a genuine intention to study. The Tribunal finds that his primary intention is not, nor is it likely to be, to engage in study. Consequently the Tribunal considers that his ongoing stay in Australia is not in line with the purpose of his Student visa. The Tribunal gives this consideration significant weighs against the applicant.

    The extent of compliance with the visa conditions

28. The applicant was granted a Student visa subclass 573 to undertake a course of higher education study, and to achieve a qualification from an Australian educational institution. As a visa holder of a subclass 573 visa, the applicant is required to comply with all visa conditions including maintaining enrolment in a registered course of study, attending satisfactorily, and progressing satisfactorily.

29. Condition 8516 attached to the applicant’s Student visa and requires that the visa holder must continue to satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. The Student visa was granted for study in a principal course of a Bachelor of Business. His enrolment in this course was cancelled on 27 October 2017 and he did not hold a valid Confirmation of Enrolment (COE) in a bachelor level course until 25 February 2019, a period of approximately 16 months. During this time he was not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas and therefore in breach of condition 8516.

30. Whilst the applicant enrolled in an approved bachelor course in the higher education sector on 25 February 2019 and has been complying with his visa conditions since then, the Tribunal gives weight to his poor study history in completing just four prerequisite English courses and not having undertaken any study at the bachelor’s level in the higher education sector, the level of study for which his Student visa was granted.

31. Whilst the Tribunal has no evidence of the applicant’s non-compliance with other visa conditions, in light of his breach of condition 8516 and his poor study history, it gives this consideration some weight in favour of cancelling the visa.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder's control that led to the grounds existing.

32. The Tribunal notes the applicant’s evidence that his lack of application to his studies and poor attendance initially arose because of his difficulty adjusting to life and study in Australia, which were exacerbated by a broken relationship.  Later, his parents’ dismay at his change of courses caused him distress such that he did not apply himself to his studies. 

33. The applicant offered no evidence that he had sought the assistance of his education providers for his difficulties in adjusting to life and study in Australia. There is no evidence that he sought a deferral of his studies in response to these challenges. On the contrary he confirms that he never approached his education providers to discuss his problems or to seek a deferment of his studies.

34. The Tribunal accepts that the applicant’s broken relationship may have precipitated his difficulties with his studies and acknowledges the support letter from his psychologist opining that he may have suffered from depression as a consequence. However, the Tribunal shares the delegate’s concern that the timing of his consultation with Dr Nguyen eight days after he was issued with a NOICC undermines the veracity of his claims. Nor does the applicant’s claims of depression satisfactorily why he changed study pathways three times since October 2017.  The Tribunal finds his changes of enrolment to be more indicative of his wish to maintain his Student visa as opposed to a genuine desire to pursue his studies.

35. The Tribunal considers the applicant’s circumstances were not such that they might be said to be beyond his control, nor are they extenuating circumstances. The Tribunal gives this consideration some weight in favour of cancelling the visa.

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of the cancellation decision.

36. The applicant made no submission regarding any hardship that he or his family may suffer if his visa is cancelled. He conceded at hearing that his family in Vietnam is financially able to  provide for his living in Australia despite cancellation of his Student visa. Nevertheless the Tribunal is prepared to accept that some hardship would be caused by the cancellation as the applicant will not be able to pursue further study in Australia. The Tribunal also accepts the applicant and his parents would suffer financial loss in the event of his visa cancellation. However there is no evidence that he nor they will be caused any significant degree of financial, psychological or emotional hardship if his visa is cancelled.  The Tribunal therefore gives little weight to this factor in considering whether to cancel the visa.

    The visa holder's past and present behaviour towards the department (for example, whether a person has been truthful in statements or cooperative in their dealings with the Department)

37. There is no evidence that the applicant's past and present behaviour towards the Department has been untruthful or un-cooperative. The Tribunal gives this consideration some weight in in his favour.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

38. There is no indication that there are persons in Australia whose visas would or may be cancelled under s.140 of the Act. The applicant has stated that he is alone in Australia. The Tribunal therefore finds this factor is not a relevant consideration.

    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

39. The applicant did not raise any matters to suggest that this is an issue. Nor is there any other evidence or indication before the Tribunal that a relevant international agreement obligation may be impacted by the cancellation of the applicant’s visa.  The Tribunal therefore finds this factor is not a relevant consideration.

    Whether there are mandatory legal consequences to a cancellation decision

40. The cancellation of the visa would mean that the applicant may become an unlawful non-citizen if his Bridging visa ceases and he remains in Australia without obtaining a subsequent valid visa.  The applicant would then become unlawful and subject to removal from Australia. The Tribunal does not consider that the factor of the applicant becoming liable to detention and removal if he remains in Australia without a valid visa, outweighs other factors that support the cancellation of the visa.

41. The Tribunal has also taken into account the fact that the applicant would face being subject to PIC 4013 and a three-year exclusion period on temporary visas.  However the applicant has not presented any compelling need to remain in Australia or to return to Australia within the next three years. The Tribunal gives this factor only limited weight in his favour and finds it does not outweigh other factors that support the cancellation of the visa.

    Any other relevant matters

42. There are no other relevant matters before the Tribunal.

    Conclusion

43. Considering the circumstances as a whole, the Tribunal concludes that the weight of the considerations outlined above support cancellation of the applicant’s Student visa. The Tribunal concludes that the visa should be cancelled.

    DECISION

44. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stephen Conwell
    Member

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.