Nguyen (Migration)

[2020] AATA 3644

Nguyen (Migration) [2020] AATA 3644 (2 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:Mrs Thi Thu Hien Nguyen

CASE NUMBER:  1828375

HOME AFFAIRS REFERENCE(S):          BCC2018/1078367

MEMBER:L. Symons

DATE:2 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 2 July 2020 at 5:41pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) enrolment in a higher level course ceased – limited academic progress – applicant changed to Vocational and English courses – home country scholarship approval for new course – new enrolment not obtained – financial hardship – compensation required to home government – responsibility for children – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 116, 359
Migration Regulations 1994, Schedule 8, Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 September 2018 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study since 29 August 2017. On 27 September 2018, the applicant applied to the Tribunal for a review of that decision.

3. On 19 February 2020, the Tribunal wrote to the applicant and invited her to appear before the Tribunal on 24 March 2020. On 23 March 2020, the Tribunal received an email from the applicant requesting an adjournment of the hearing. The hearing was adjourned to 16 April 2020. On 14 April 2020, the Tribunal received an email from the applicant requesting an adjournment of the hearing. The hearing was adjourned to 26 May 2020.

4. The applicant appeared before the Tribunal by telephone on 26 May 2020 to give evidence and present arguments. She was assisted by an interpreter in the Vietnamese and English languages. She was represented by her registered migration agent, Mr Nguyen, who attended the hearing.

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 AND FINDINGS

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 breach 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 full-time registered course: 8202(2)(a)

   ·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).

8. In the present case, the applicant was granted a Student visa on 10 August 2017. This visa was subject to a number of conditions including condition 8202. On 11 May 2018, the delegate sent her a Notice of Intention to Consider Cancellation (NOITCC) of her Student visa on the basis that she had not been enrolled in a registered course since 29 August 2017. She was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why her Student visa should not be cancelled. In her response dated 16 May 2018, she provided reasons why her visa should not be cancelled. The Department of Home Affairs (the Department) cancelled her visa on 20 September 2018. 

9. The applicant has filed with the Tribunal a copy of her Vietnamese passport issued 6 June 2014. She wrote to the Tribunal on 17 October 2018 giving reasons why her Student visa should not be cancelled.

10. On 21 May 2020, the applicant’s migration agent filed with the Tribunal written submissions dated 21 May 2020 together with copies of a Certificate from UOW College dated 14 March 2014, a Student Report from UOW College dated 14 March 2014, an Academic Transcript from the University of Wollongong for the period 2014 to 2016, a Medical Certificate dated [in] October 2018, a Discharge Summary from [Hospital 1], two black and white photographs of a car, an International Student Application Form dated 28 June 2018, a Postgraduate Course Work Application Form dated 5 September 2018, a Letter of Offer and Payment Invoice dated 20 May 020 from Sydney Metro College in relation to a Diploma of Project Management and a Research Proposal Template.

11. During the hearing, the applicant gave evidence that her last Student visa was granted on 10 August 2017. She stated that her enrolment in the Doctor of Education degree was cancelled on 29 August 2017. She stated that she needed to find another supervisor and enrol at another university so she could continue her doctorate. She stated that whilst she was waiting to find another supervisor she was advised to enrol in an Advanced Diploma of Leadership and Management. She stated that she enrolled in this course and attended for one semester in 2019. She stated that she found it was unsuitable and discontinued her studies.

12. The Tribunal asked the applicant whether she understood that if she was not enrolled in a registered course between 29 August 2017 and 13 January 2019, she would be in breach of  condition 8202 of her Student visa. She responded that she did. She stated that a Doctor of Education degree is not the same as a Bachelor degree or a Master’s degree. She stated that a doctorate course is not available at any time. She stated that she agreed that she had breached condition 8202 of her Student visa. She asked that the Tribunal show her mercy, sympathy and understanding. She stated that she is keen to finish her doctorate course, she returned to Australia with a scholarship and the course is not available.

13. The records of the Department of Education indicate that the applicant enrolled in a Doctor of Education degree from 27 February 2017 to 28 February 2021. Her enrolment was cancelled on 29 August 2017 due to unsatisfactory course progress. The Department sent her a NOITCC on 11 May 2018. She then enrolled in an Advanced Diploma of Leadership and Management from 14 January 2019 to 10 January 2021. The records of the Department of Education indicate that her enrolment in that course was cancelled on 30 July 2019 for unsatisfactory attendance.

14. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that she had breached condition 8202 of her Student visa and that her Student visa should be cancelled. The applicant responded by requesting an adjournment to obtain evidence that during that time she continued her research and was in contact with universities to complete her studies. The Tribunal pointed out to her that her migration agent had already provided that evidence to the Tribunal. She stated that she attempted a course in leadership and management,  but it was not suitable to her future role. She requested time to complete her doctorate. She stated when she completes her doctorate she will return to Vietnam. She reiterated her previous evidence.

15. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a full-time registered course between 29 August 2017 and 13 January 2019 and accordingly has not complied with condition 8202(2)(a) of her Student visa.

    Consideration of the discretion to cancel the visa

16. Having found that the applicant has not complied with a condition of his Student 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’.

    Purpose of the applicant’s travel to and stay in Australia. Did the applicant have a compelling      need to travel to or remain in Australia?

17. In her response to the NOITCC, the applicant stated that her purpose in coming to Australia was to obtain a higher education.

18. The applicant gave evidence to the Tribunal that she obtained a Bachelor degree in Vietnam. She stated that the purpose for which she travelled to Australia was to upgrade her skills. She stated that she enrolled in two Masters degrees and a Doctor of Education degree i(in Australia) so that she would be equipped to satisfy the requirements of her role in Vietnam. She stated that she was granted a scholarship from the Vietnamese government to undertake a Master of Education degree and a Doctor of Education degree. She stated that the scholarship was for 3 years, but the Vietnamese government was willing to extend the time if she was not able to complete the degrees in that timeframe. She stated that she is required to return to Vietnam and continue to work in Education and serve the Vietnamese government.

19. The Tribunal asked the applicant why she did not return to her family in Vietnam, sort out her health issues and then return to her studies in Australia, if she was suffering from [a condition] and unable to study. She responded that she had to stay in Australia because she had to finish her research project. She stated that she had to collect the information here, look for a supervisor and find a university that would accept her proposal.

20. The Tribunal noted that it was now several years down the track, she was not enrolled in a Doctor of Education degree and did not have a supervisor. The Tribunal asked her if there was any reason why she needed to remain in Australia. She responded that she has found a Diploma of Project Management course. She stated that she has contacted the Vietnamese government and they have agreed to her enrolling in that course. She stated that it will serve her in her job in Vietnam. She stated that she needed one more year to complete her studies.

21. The Tribunal pointed out to the applicant that she was not given the Student visa to do a Diploma. The Tribunal noted that she was given the Student visa to do a Doctor of Education degree. She responded that that is the reason why she is searching for a supervisor. She stated that she has been in contact. She stated that the Diploma of Project Management and the Doctor of Education are related. She stated that it has been a long time and she promised that she would finish. The Tribunal is not satisfied, on the evidence before it, that the Diploma of Project Management and the Doctor of Education are related.

22. The records of the Department indicate that the applicant was first granted a subclass 574 Student visa on 7 October 2013 to undertake a Doctor of Education degree. This visa was valid until 30 March 2017. She was then granted a subclass 500 visa on 10 August 2017 to continue her Doctor of Education degree. The records of the Department of Education indicate that she enrolled in a Doctor of Education degree from 3 March 2014 to 21 December 2016 and her course was deferred on 15 September 2015 on compassionate or compelling grounds. On 4 October 2016, she obtained another deferment on the same grounds. Her enrolment in the Doctor of Education degree was cancelled on 29 August 2017 due to unsatisfactory course progress.

23. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it had difficulty accepting that she would be able to finish her degree in a year. The Tribunal noted that, as at the hearing date, she had still not found a supervisor or enrolled in a Doctor of Education degree. The Tribunal noted that it may find that she had not fulfilled the purpose for which the Student visa was granted to her and that her Student visa should be cancelled.

24. The applicant responded that everything that happened was not due to her fault. She stated that a doctorate course requires a lot of effort in relation to reading and gaining knowledge. She stated that, as a Vietnamese, she had difficulty. She stated that she sought a deferral because of her [health issues]. She stated that her Professor retired, there was an issue with the availability of the school and her [health] were all reasons that were not in her control. She stated that she will do her best to complete the degree.

25. The applicant was granted a subclass 574 Student visa on 7 October 2013 for the purpose of undertaking a Doctor of Education degree. She then studied an English language course. That was not the purpose for which she was granted the Student visa. She also enrolled in an Advanced Diploma of Leadership and Management. That was not the purpose for which she was granted the Student visa. She then enrolled in a Diploma of Project Management. That was also not the purpose for which the Student visa was granted to her.

26. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that she used her Student visa to extend her stay in Australia and not because she genuinely intends to complete a Doctor of Education degree in Australia.

27. The applicant responded that her English course in October 2017 was in the offer letter from the University because they need her to improve her English to do the research. She stated that the requirement for English was important for students and she needed to complete the course. She stated that it was suitable for her Doctor of Education degree. She stated that the pressure was too much for her and she suffered from [several conditions] during her studies. She stated that she did not plan to have [these] health problems.

28. The applicant stated that she would like to have time to recover and do her research. She stated that students doing a Bachelor degree or a Master’s degree just follow instructions. She stated that doing a doctorate is different and the cost is higher. She stated that professors and supervisors are not always available in her field of research. She stated that she needed 3 to 6 months to receive a response from universities so that she could finish her degree. She stated that she came to Australia to broaden her knowledge, gain experience and upgrade her qualifications to serve her career and her country and to improve the education system in Vietnam. She requested more time.

29. The evidence before the Tribunal indicates that the applicant has a poor history as a student in Australia. She was granted the subclass 575 Student visa on 7 October 2013 for the purpose of undertaking a Doctor of Education degree. Her enrolment in this degree at the University of Wollongong did not commence until 3 March 2014. She then applied for and obtained two substantial deferrals of her studies in 2015 and 2016. The University of Wollongong eventually cancelled her enrolment on 29 August 2017 for unsatisfactory course progress.

30. The applicant has had since 29 August 2017 to enrol at another university and to organise a supervisor and has not done so. In written submissions to the Tribunal, her migration agent stated that she reapplied to two universities, being Torrens University and the University of Wollongong, to enrol in a Doctor of Education degree and had not received any responses. The Tribunal was provided with copies of these applications and they are dated 28 May 2018 and 5 September 2018 respectively. If she has not already received responses to these applications, it is highly unlikely that she will do so now. She has had plenty of time after the hearing to provide the Tribunal with further evidence of any attempts made by her to enrol at another university and to obtain a supervisor and has not done so.

31. The applicant’s situation in relation to her studies is now worse than it was in March 2014. The Tribunal has been provided with a Letter of Offer from Sydney Metro College in relation to a Diploma of Project Management commencing 15 June 2020. This is not evidence of her being enrolled in that course. In any event, she was not granted the subclass 500 Student visa for the purpose of undertaking a Diploma of Project Management. There is no evidence before the Tribunal to indicate that she is currently enrolled in a Doctor of Education degree. On the evidence before it, the Tribunal is not satisfied that she will be able to find a supervisor and enrol in a Doctor of Education degree if granted more time.

32. The Tribunal finds the applicant’s evidence to be implausible, contradictory and unconvincing. She stated that the Vietnamese government granted her a scholarship for 3 years to do a Master of Education degree and a Doctor of Education degree and were prepared to extend the time if she was not able to complete the degrees in that timeframe. She has not completed the Doctor of Education degree despite being enrolled in that course since 2014. In these circumstances, it is implausible that the Vietnamese government would approve of her doing a Diploma of Project Management.

33. The applicant’s evidence is also contradictory. She stated that she needed more time because she wished to study a Diploma of Project Management. When the Tribunal pointed out to her that that was not the purpose for which the Student visa was granted to her, she stated that she needed another year to complete her Doctor of Education degree. In view of her history as a student undertaking a Doctor of Education degree in Australia, the Tribunal finds her assurance that she will be able to complete her doctorate in a year to be unrealistic and unconvincing.

34. Further, the Tribunal has serious doubts that the applicant has the financial capacity to pay for a Doctor of Education degree in Australia. She has provided the Tribunal with a copy of a Discharge Summary from [Hospital 1] which indicates that she reported to the treating doctor in May 2018 that she deferred her studies partly due to financial reasons as she had finished her scholarship funds. Her evidence to the Tribunal is that she has two school going children in Australia for whom she is responsible, her husband did not fulfil his role as a provider (when he was in Australia) and he returned to Vietnam in October 2019 to take care of his elderly mother.

35. The applicant stated that she was not working at the time of the hearing and had not worked for about 3 years. When asked how she supports herself and her children if she was not working, she responded that she has savings from when she worked as a teacher (in Vietnam) and her parents also help her. In these circumstances, the Tribunal is not satisfied that she has the financial capacity to pay for a Doctor of Education degree in Australia. It is therefore highly unlikely that she will be able to undertake this degree if her Student visa is not cancelled.

36. The Tribunal finds that the applicant has not fulfilled the purpose for her travel to and stay in Australia. The Tribunal is not satisfied that she has demonstrated a compelling need to remain in Australia.

37. The Tribunal gives this consideration no weight in the applicant’s favour.  

    The extent of compliance with visa conditions

38. The applicant was not enrolled in a registered course of study between 29 August 2017 and 13 January 2019. This was a substantial period of time during which she was in breach of condition 8202(2)(a) of her Student visa. She then enrolled in an Advanced Diploma of Leadership and Management. That was not the purpose for which she was granted the Student visa.

39. The Tribunal asked the applicant what her intentions were if she had not been issued with the NOITCC. She responded that her intention was to continue her doctorate project. She stated that she had been studying, collecting information and reading books during that period. She stated that she had contacted a supervisor to finish her degree and return to Vietnam.

1. The applicant stated that she had not breached any other condition of her Student visa. There is no evidence before the Tribunal to indicate that she has breached any other condition of her Student visa.

2. The Tribunal gives this consideration no weight in the applicant’s favour.   

   Degree of hardship that may be caused

3. The applicant wrote to the Tribunal on 17 October 2018 in relation to why her Student visa should not be cancelled. She stated that she came to Australia to obtain a higher education. She stated that she has obtained a Master’s degree and hopes to get a PhD. She stated that she is awaiting confirmation from the University of Central Queensland. She stated that if her Student visa is cancelled, she will be forced to forfeit her scholarship and return to Vietnam putting her in a deeper financial crisis. She stated that she is a single mother and has two children aged 9 years and 15 years and only wants what is best for them. She stated that she brought them to Australia as it is safe from poverty and abusive alcoholics which has traumatised her children.

4. The applicant stated that her children wish to have the opportunity to continue their studies in Australia until they finish university. She stated that they need her beside them to take care of their lives during the time they study in Australia. She stated that they are afraid of returning to Vietnam as they will have to again study in Vietnamese, it would be a different studying environment, programs and curriculum and more difficult in Vietnam. She stated that they have been in Australia for over 4 years and get on well with their study environment, programs and curriculum. She stated that they attend pubic school, have socially expanded and have great ambition to achieve as they know the lifestyle awaiting them in Vietnam. She stated that they are stressed that they might lose their friends and life here.

5. The applicant stated that she is [concerned] about her family relationships and anxious because her parents who are over 70 years old and getting older. She stated that her father has diabetes and broken bones that have made him weak. She stated that her mother had a heart attack and heart surgery. She stated that her husband was depending on her visa and neglecting his duty to provide leaving her triggers for [her conditions].    

6. During the hearing, the Tribunal asked the applicant what hardship it would cause her if her Student visa is cancelled. She responded that she obtained a scholarship from the Vietnamese government on the condition that she completes the course and returns with a degree. She stated that if she returns empty handed, she would have to compensate the Vietnamese government. She stated that it is difficult for her and would affect her job. She stated that she needed one more year to complete her degree.

7. The applicant stated that the cancellation of her Student visa would be a huge disappointment and a waste of time, effort and finances spent in Australia. She stated that it would be a severe blow on her [health]. She stated that it would have an impact on her family, life and future. She stated that it would severely impact her children and the livelihood of her family. She stated that she came on a scholarship to go back and help her government. She stated that without a degree and a visa extension she cannot do that. She requested mercy and more time.

8. The applicant’s migration agent made oral submissions that his client says she will finish the doctorate in one year. When the Tribunal pointed out to him that during the 3 years she was enrolled in the Doctor of Education degree she deferred her studies for most of that time. He responded that she told him that the University cancelled her course and she was stressed. He stated that they helped her to apply to Torrens University and the University of Wollongong 3 years ago and both universities did not respond.

9. The applicant’s migration agent submitted that the applicant spoke to professors from different schools and waited for 3 to 6 months to receive a response. He submitted that if she returns to Vietnam it would be a big problem for her and for her children’s future. He requested 3 to 6 months to obtain a response from a professor she contacted. He stated that maybe after that if she is refused, she will change her mind and accept the decision.

10. The applicant’s written statement to the Tribunal tends to indicate that she has no intention of returning to Vietnam as it is her children’s wish to attend university in Australia and that they need her beside them to take care of their lives during the time they study in Australia. In her response to the NOITCC, she referred to herself as a future citizen of Australia. Nevertheless, the Tribunal accepts that if the Student visa is cancelled it would cause her and her family considerable hardship.

11. The Tribunal gives this consideration weight in the applicant’s favour.   

    Circumstances in which the ground for cancellation arose

12. In her response to the NOITCC, the applicant stated that she came to Australia to obtain a higher education. She stated that she has obtained a Master’s degree and hopes to get a PhD. She stated that she is awaiting confirmation from the University of Central Queensland. She stated that if her Student visa is cancelled, she will be forced to forfeit her scholarship and return to Vietnam putting her in a deeper financial crisis. She stated that she is a single mother and has two children aged 9 years and 15 years and only wants what is best for them. She stated that she brought them to Australia as it is safe from poverty and abusive alcoholics which has traumatised her children. She stated that they attend pubic school, have socially expanded and have great ambition to achieve as they know the lifestyle awaiting them in Vietnam. She stated that they are stressed that they might lose their friends and life here. She stated that the father of her children depends on her visa while completely neglecting his duty to provide leaving her with triggers leading to [her conditions]. She stated that she has been an “outstanding abiding future citizen of Australia” and hopes to contribute through her “achievements and legacy”.

13. The Tribunal asked the applicant what her reasons were for not being enrolled in a full-time registered course between 29 August 2017 and 13 January 2019. She responded that she spoke to her “guidance professor” about 3 years being insufficient time to complete a doctorate. She stated that her professor agreed to extend the timeframe for the course and she obtained an extension of her Student visa. She stated that immediately after that her professor retired and the University of Wollongong then discontinued her studies. She stated that this caused her [conditions]. She stated that she tried to reapply for the course but did not get a response. She stated that she has been searching for a supervisor everywhere in Australia. She stated that if there is a supervisor at any university, she is willing to go there.

14. The Tribunal asked the applicant whether she spoke to her supervising professor about a replacement before he retired. She responded that she did. She stated that he  recommended a replacement supervisor and allocated her a female supervisor. She stated that she did not understand why the University of Wollongong discontinued her studies. She stated that she had to enrol in another course and find a supervisor. She stated that, while she was waiting, she was advised to enrol in a Diploma of Project Management which is appropriate for her future job.

15. The Tribunal asked the applicant whether she received a letter from the University of Wollongong telling her why they are cancelling her enrolment. She stated that she received a letter telling her they are going to discontinue her studies. When asked again what reason they gave, she responded that it was some time ago and she did not remember the contents of letter. She stated that she sought a review of that decision, but the result was unsatisfactory. She stated that she tried to reapply for the same course at the University of Wollongong but was not successful, so she tried other universities.

16. The Tribunal asked the applicant whether she spoke to the Department about the problems she was having. She responded that she asked her migration agent to lodge an appeal with the Tribunal so that she would have time to complete her studies. When asked whether she spoke to the Department before her visa was cancelled, she responded that she did and gave them an explanation, but they cancelled her visa.

17. The Tribunal received written submissions from the applicant’s migration agent. In his submissions, he stated that the University of Wollongong did not agree that the applicant’s degree should be completed by 2021 in accordance with her Confirmation of Enrolment (COE) and cancelled her COE in 2017 – 2018. This submission is not consistent with the records of the Department of Education which indicate that the applicant’s enrolment in the Doctor of Education degree at the University of Wollongong was cancelled due to unsatisfactory course progress (between 2014 and 2017). (See paragraphs 22 and 23 above).

18. The applicant’s migration agent submitted that the applicant had [health] problems during this period and suffered from [specified conditions] due to her family issues and vehicle fire. He submitted that this distracted her from her studies. He submitted that in 2018 she tried to re-apply to Torrens University and the University of Wollongong but did not receive a reply. He provided the Tribunal with a Discharge Summary from [Hospital 1], a Medical Certificate and two black and white photographs of a car.

19. The Discharge Summary from [Hospital 1] indicates that the applicant presented herself to [Hospital 1] [with specified conditions]. It states that she was admitted for [care] [in] May 2018. It refers to her being separated from her husband and him being involved with another woman. It refers to deferring her studies as she was struggling to concentrate on her studies while looking after her children and her finances as she had finished her scholarship money. She was discharged [later in] May 2018 into the care of her General Practitioner and to obtain a referral to a [specialist].

20. The Medical Certificate is dated [in] October 2018 and is issued by [Doctor A], a General Practitioner, at [a named] Medical Centre. It states that the applicant has been [suffering a specified condition]. It states that she first saw [Doctor A] [in] April 2018 complaining of having “[an issue]”. It states that she presented to [a named health service] [in] October 2018 (sic) and was now taking medication for [her conditions]. It states that she was now seeing a [specialist]. The Tribunal has not been provided with any evidence from the [specialist].

21. The two black and white photographs show a car in a yard with other cars behind a fence. The front part of the car near the bonnet looks like it may have some fire damage. There is no other evidence to indicate whose car this is, when it was damaged, how it was damaged, where it was damaged, who damaged it, why it was damaged or how this was resolved. The Tribunal places little weight on this evidence.

22. The medical evidence is dated 2018. This was a considerable amount of time after the applicant’s COE was cancelled on 29 August 2017. It refers to her deferring her studies as she was struggling to concentrate on her studies while looking after her children and her finances as she had finished her scholarship money. This is consistent with her evidence to the Tribunal that she brought her children to Australia after she commenced her Doctor of Education degree. She stated that she realised that she needed some extra money and got permission to work. She stated that she worked at a Vietnamese shop in Wollongong and then worked at a Korean sushi shop.

23. This evidence, the applicant’s response to the NOITCC and her written statement to the Tribunal tend to indicate that her priority was looking after and providing for her children. It is not surprising that she was unable to concentrate on her studies while she was looking after her children and working to provide for them. This was the reason she gave for deferring her studies and may also explain her unsatisfactory course progress in her Doctor of Education degree. The evidence before the Tribunal suggests that she will continue to be responsible for looking after her children and providing for them financially if her Student visa is not cancelled.

24. The Tribunal is sympathetic to the applicant, the situation she finds herself in and her motivation for wanting to remain in Australia. However, she made the decision to bring her children to Australia and is responsible for the consequences that flow from that. The Student visa was granted to her for the purpose of her study in Australia and not for the purpose of her children studying in Australia. Her choices and the decisions she made meant that she was unable to fulfil her responsibilities to her education provider and to the Department. These are not exceptional circumstances beyond her control.

25. The Tribunal gives this consideration little weight in the applicant’s favour.

    Past and present behaviour of the visa holder towards the Department

26. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that she has engaged in unfavourable behaviour towards the Department.

27. The Tribunal gives this consideration weight in the applicant’s favour.  

28. Whether there would be consequential cancellations under s.140 of the Act

29. The applicant has two children aged 17 years and 11 years. They are currently in Australia on Student dependent visas. They are both attending school. The cancellation of the applicant’s Student visa would result in a consequential cancellation of her two children’s visas under s.140 of the Act.

30. The Tribunal gives this consideration weight in the applicant’s favour.

    Legal consequences of a decision to cancel the visa

31. If the applicant’s Student visa is cancelled, she will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if she does not voluntarily depart Australia or resolve her immigration status. However, she may be eligible for a Bridging visa that would allow her lawful presence in Australia for a short period of time so that she can finalize her affairs in Australia before departing.

32. If the applicant’s Student visa is cancelled, she will be subject to s.48 of the Act which means she will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent her from being granted particular temporary visas for a period of three years from the date of cancellation.

33. These are the intended legal consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa.

34. The Tribunal gives this consideration little weight in the applicant’s favour.   

    Australia’s international obligations

35. The Tribunal asked the applicant whether there was any reason why she could not return to Vietnam and she responded no.

36. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations.

37. The Tribunal does not give this consideration any weight in the applicant’s favour.

    Any other relevant matter

38. The Tribunal is not aware of any other relevant matter.

    CONCLUSION

39. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling her Student visa. Therefore, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    L. Symons
    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.