NGUYEN (Migration)

[2020] AATA 4661

NGUYEN (Migration) [2020] AATA 4661 (7 October 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Minh Nhat NGUYEN

CASE NUMBER:  1831356

DIBP REFERENCE(S):  BCC2018/3821210

MEMBER: DrJason Harkess

DATE OF DECISION:  7 October 2020

DATE CORRIGENDUM

SIGNED:19 November 2020

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The words ‘the decision to cancel the Applicant’s visa ought to be affirmed.’ at paragraph 9 should be replaced with ‘the decision to cancel the Applicant’s visa ought to be set aside.’. 

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Miss Minh Nhat Nguyen
CASE NUMBER:		1831356
HOME AFFAIRS REFERENCE:		BCC2018/3821210
MEMBER:		Dr Jason Harkess
DATE:		7 October 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa

Statement made on 7 October 2020 at 11:22am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – stress in new environment, language barrier and father’s health – psychological treatment, marriage to Australian citizen and return to study – visa now expired – under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 127
Migration Regulations 1994 (Cth), r 2.55(3)(d)(ii), (8), Schedule 2, cl 500.611, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

1. The Applicant is a citizen of Vietnam and is 23 years old. She seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 23 October 2018 cancelling her Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant lodged her review application with the Tribunal on 25 October 2018.

Original Visa Grant

1. The Applicant’s visa was granted on 5 October 2016. It was granted because a delegate of the Minister had determined that she met the primary criteria for the grant of a student visa.[1]

   [1] The primary criteria for the grant of a student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

2. The visa had an original expiry date of 26 December 2019 before it was cancelled. It provided for more than three years and two months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study. Specifically, the visa had been granted so that the Applicant could complete an English course followed by a Bachelor of Business course.

Reasons for Cancellation

1. The Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied with a condition of her visa. Specifically, it was found that the Applicant had failed to comply with that condition which required her to maintain enrolment in a registered course of study for the duration of the visa grant period. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the Applicant’s visa ought to be cancelled.

2. The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when she was notified that his visa had been cancelled on 23 October 2018.[2] By lodging her review application, the Applicant contends that the delegate’s decision to cancel her visa is neither the correct nor preferable outcome in this case.

   [2] Notification was given in accordance with s 127 of the Migration Act 1958 (Cth) and reg 2.55(3)(d)ii) of the Migration Regulations 1994 (Cth) by emailing the notification and decision record to the Applicant’s last email address known to the Minister on the date of the decision. By the operation of reg 2.55(8) of the Migration Regulations 1994 (Cth), the Applicant is taken to have received the notification and decision record on that date.

Issues for Determination by Tribunal

1. The first issue requiring consideration by the Tribunal is whether the grounds for cancellation under s 116(1)(b) of the Act is made out, namely whether the Applicant did not comply with a condition of his visa. If the Tribunal determines those grounds are made out, the second issue requiring consideration is whether the Applicant’s visa ought to be cancelled.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the application on 9 December 2019. The Applicant appeared before the Tribunal by video link to give evidence and present arguments. She was assisted by her registered migration agent, Mr Ngoc Nguyen, who also appeared via video link.

2. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to cancel the Applicant’s visa ought to be affirmed. In reaching its decision, the Tribunal has had regard to:

   (a)the delegate’s decision record;

   (b)the oral evidence of the Applicant given at the hearing;

   (c)all written material filed by or on behalf of the Applicant before, during and after the hearing; and

   (d)other relevant documents on the Tribunal and Department files.

2. The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.[3]

GROUNDS FOR CANCELLATION

[3] The Tribunal notes that it is not required to make explicit reference to every piece of relevant information before it because not all relevant considerations will be material or fundamental in any given case. See Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, [30]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [49] (Bell, Gageler and Keane JJ); Shoukat v Minister for Home Affairs [2020] FCA 194, [25] (O’Callaghan J); Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Applicable Law

1. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted.

2. Condition 8202(2)(a) attaches to all student visas and creates a continuing obligation for the duration of the visa.[4] It requires the visa holder to maintain enrolment in a full-time registered course of study.

   [4] Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a). All standard conditions of visas issued to non-citizens, including Condition 8202, are set out in full in the Migration Regulations 1994 (Cth), Sch 8.

3. The imposition of Condition 8202(2)(a) draws attention to the fact that all student visas are issued for the specific purpose of studying on a full-time basis. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study, they are specifically prohibited from ceasing to be enrolled altogether. In that regard, Condition 8202(2)(a) is one of many student visa conditions designed to ensure that Australia’s student visa program is not abused.

Has the Applicant Failed to Comply with Condition 8202(2)(a)?

Delegate’s Allegations

1. In the delegate’s decision record, the delegate identified the period from 31 August 2017 to 23 October 2018 as the relevant period during which the Applicant was said not to be enrolled in a full-time registered course of study. This amounted to almost 14 months during which the Applicant was alleged to be in continuous breach of her visa.

2. The delegate’s findings were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[5] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. The PRISMS report obtained by the delegate indicated that the Applicant had not been enrolled in a registered course since 31 August 2017.

   [5] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. On 2 October 2018 the Department of Home Affairs (‘the Department’) notified the Applicant of its intention to consider cancelling her visa (‘the NOICC’). In accordance with s 119 of the Act, the NOICC:

   (a)gave particulars of the allegation that the Applicant had not complied with Condition 8202(2)(a) of his visa;

   (b)gave particulars of the information obtained from the PRISMS database that founded the allegation;

   (c)informed the Applicant that not complying with Condition 8202(2)(a) constituted grounds for cancelling her visa; and

   (d)invited the Applicant to show the Department that those grounds did not exist or that there was a reason why her visa should not be cancelled.

4. The Applicant did not respond to the NOICC.

Evidence Given by Applicant at Hearing

1. At the hearing before the Tribunal on 9 December 2019, the Applicant admitted that she was not enrolled in a registered course of study for the period 31 August 2017 to 23 October 2018 and, therefore, in breach of Condition 8202(2)(a) of her visa for that period.

Conclusion

1. Based on the material before the Tribunal, it is reasonably clear that the Applicant did not comply with a condition of her visa. The Tribunal finds that the Applicant did not comply with Condition 8202(2)(a) of her visa for the period 31 August 2017 to 23 October 2018. Accordingly, there are grounds for cancelling her visa under s 116(1)(b) of the Act.

Consideration of discretion to cancel visa

1. Having found that the Applicant failed to comply with a condition of his visa, the Tribunal must proceed to consider whether his visa should be cancelled.

Relevant Factors

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. The matters that ought to be considered are specifically listed in PAM3 as follows:

   (a)the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether she has a compelling need to remain in Australia;

   (b)the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   (c)the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   (d)the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   (e)the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

   (f)whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   (g)whether there are mandatory legal consequences arising from a decision to cancel the visa;

   (h)whether Australia has obligations under any relevant international agreements that would be breached as a result; and

   (i)any other relevant matter.

Circumstances

1. The Applicant sought to explain the circumstances giving rise to her non-compliance with the Condition 8202(2)(a) at the hearing before the Tribunal. In summary, she explained to the Tribunal as follows:

   (a)The Applicant was not enrolled in a course for 14 months because she was under severe stress. She felt adapting to the new environment, which Australia represented for her, was very difficult. The language barrier was very significant for her, and she had no friends or family members to support her during that time.

   (b)While she was studying English, her father back in Vietnam fell seriously ill which added to her stress. She described her father falling and breaking his arm. She also said she received a report from her father’s doctor which stated that her father had a blocked blood vessel in the brain.

   (c)She wanted to return to Vietnam to visit her father, but her family insisted that she remain in Australia to continue with her studies.

   (d)She saw a psychologist for counselling. The first visit to the psychologist occurred in November 2017. She had more than 10 sessions with the psychologist. She said the psychologist helped resolve her difficulties in life. She was briefly on sleeping and anti-depressant medication.

   (e)She married her long-term partner, Mr Anh Tuan Phan, in about August 2019. He is an Australian citizen.

   (f)She intends to complete her Bachelor’s degree now that she has her life back on track.

2. Since the hearing, the Applicant has filed further supporting evidence in her case for setting aside the decision to cancel her student visa. This includes a statutory declaration from her husband, Mr Phan, a marriage certificate, and an up to date academic transcript which indicates she passed two out of three units this year in her first semester of studies in a Bachelor of Business at Universal Business School, Sydney.

3. The Tribunal, on balance, is ultimately satisfied that Applicant’s account of her difficulties in coming to Australia and maintaining her studies is a truthful account. The Tribunal has also taken into account her relative youth and the difficulties that she is likely to have faced in adapting to a new environment that Australia represented for her. It appears that she has now adapted to the new environment and is making progress towards completion of her Bachelor’s degree.

Purpose of Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia was to study. While that purpose was undermined as a result of her cessation of studies for a considerable period, the Tribunal is satisfied that the personal circumstances giving rise to the breach were largely out of her control. Although the original visa, were it left to operate, has now expired, the Tribunal considers that she should be given an opportunity to apply for another if she wishes to do so. The Tribunal also notes that she is now married to an Australian citizen and, assuming the relationship is genuine, that would constitute a compelling reason for her to remain in Australia.

Extent of Applicant’s Compliance with Visa Conditions

1. Beyond the current visa condition breach, the Tribunal is not aware of any other instances of non-compliance with this visa or previous visas held by the Applicant.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia, including the circumstances of her now being married to an Australian citizen. On balance, the Tribunal considers it would cause undue hardship if her visa were cancelled and she were forced to return to her home country.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There are no matters of concern in this respect.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

1. The Tribunal notes that if her visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting her options to apply for further visas from within Australia. She will also be subject to a three-year exclusion period where she will not be eligible to have any temporary visa application approved if she applies for a visa that requires Public Interest Criterion 4013 to be met. The Tribunal considers this consequence to be unduly harsh in the circumstances of this case.

International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Other Relevant Matters

1. There do not appear to be any other relevant matters material to the outcome of the present review application.

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa should not be cancelled.

decision

1. The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa.

Dr Jason Harkess
Member