Nguyen (Migration)

Nguyen (Migration) [2020] AATA 3170 (18 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Quynh Nhu Nguyen
Ms Elena Nguyen
CASE NUMBER:  1829216
HOME AFFAIRS REFERENCE(S):          BCC2018/1400423
MEMBER:Stephen Conwell
DATE:18 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first-named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 18 June 2020 at 3:43pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector – enrolment in a registered course ceased – applicant gave birth to a child – applicant wishes to resume studies – no family support – no demonstrated educational and career advantages for completing courses in Australia – separation of the child from Australian father – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 28 September 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that that the applicant was not enrolled in a registered course and therefore had breached condition 8202 of her visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Tribunal exercised its discretion to hold the hearing by telephone.
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 the matter and the individual circumstances of the applicant. The Tribunal had regard to the Tribunal’s 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant participated in the telephone hearing on 16 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from a witness, Ms Thanh Tran. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in the review by her registered migration agent (agent) who attended the telephone hearing.
The applicant provided a copy of the decision record to the Tribunal.
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
The issue in the present case is whether the applicant, as the holder of a Student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·     be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)
·     has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
·     has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant was granted a Student Vocational Education and Training (VET) Sector (subclass 572) visa on 12 March 2016. By Notice of Intention to Consider Cancellation (NOICC) dated 26 July 2018, the applicant was advised by the Department of Home Affairs (Department) that information on the Provider Registration and International Student Management System (PRISMS) indicated that she had not been enrolled in a registered course of study since 16 October 2017 and as a consequence it appeared she was in breach of condition 8202(2)(a) and that her visa may be cancelled under s.116(1)(b) of the Act.
The applicant provided an emailed response to the NOICC on 30 July 2018. In her response the applicant explained that she had given birth to a child in October 2017 and her pregnancy and the birth of her child precluded her from attending to her studies. However she wishes to continue with her studies; having completed the Certificate IV in Business she intends to enrol in the Diploma of Business. She now has access to a carer for her child and the applicant can fully attend to her studies.
Based on information contained in PRISMS and reported in the decision record the delegate made a finding the applicant had not been enrolled in a registered course of study since 16 October 2017. Therefore, the delegate made a finding the applicant did not meet the requirements of condition 8202(2)(a) and proceeded to cancel her visa.
At hearing the applicant acknowledged her not being enrolled since 16 October 2017 as outlined above.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 16 October 2017 up to her visa being cancelled on 28 September 2018 - a period exceeding 11 months.
Accordingly, on the evidence before the Tribunal, the applicant has not complied with condition 8202(2).
CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA
Having found that the applicant had breached with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).
The Tribunal notes that on the Departmental file there is a birth certificate for Elena Nguyen born on 14 October 2017 (fol.17).
The applicant’s oral evidence at hearing is summarised below:
·     the applicant first arrived in Australia in April 2013 on a Schools Sector (subclass 571) Student visa. She completed high school Year 12 in 2015;
·     on 12 March 2016 she was granted a subclass 572 visa to enrol in a Diploma of Business. She completed the preceding Certificate IV in Business in June 2017. To attain a Diploma of Business she would need to complete a further 12 subjects, which would take approximately a year of study;
·     the applicant has no family in Australia; when she first came to Australia as a high school student, she lived with a guardian. Since that time she has lived in rental accommodation, sharing with friends;
·     her family is comprised of her parents and two younger sisters age 23 and 25 years respectively. They live together in the family home in Vietnam. Her parents run a small family business, buying pigs and preparing them for on-sale to the hospitality sector. There are no employees in the business outside of the family members;
·     the applicant confirmed that the sole reason for her failure to maintain enrolment in her studies was due to her falling pregnant and eventually giving birth to her daughter in October 2017. She hoped that her Student visa could be reinstated as she hoped to finish her studies in Australia;
·     the applicant elaborated that becoming pregnant and being a mother for the first time was a significant challenge which distracted her from her studies, particularly as she gave birth in Australia without family support;
·     the applicant claims that child’s father is an Australian citizen, however could provide no evidence in support of this assertion. The child’s father is not involved in the applicant’s life or that of the child;
·     she confirmed that her child, Elena Nguyen is registered as a citizen of Vietnam;
·     she wishes to remain in Australia to complete her Diploma of Business. She has made no enquiries as to enrolling in this diploma since she has been waiting for the Tribunal hearing and decision. Should her study rights be reinstated she wishes to complete the diploma and may consider pursuing further study in Australia beyond the diploma if the opportunity arises;
·     the Tribunal questioned the applicant as to why she would prefer to remain in Australia with no family support for her or her child, when surely it would be easier for her to pursue further study in her home country of Vietnam where she has family support. The applicant’s response was that she preferred to complete her studies in Australia because “conditions are better here” and Australian qualifications are well-regarded in Vietnam.
The Tribunal notes that apart from her response to the NOICC and a copy of her daughter’s Australian birth certificate, the applicant provided little other documentary evidence in support of her application. Nevertheless the Tribunal accepts the applicant’s oral evidence with respect to her study history in Australia.
The evidence from the witness, Ms Thanh Tran, corroborated the applicant’s evidence. Ms Tran is an Australian citizen, originally from the same village in Vietnam as the applicant. She claimed that the sole reason for the applicant failing to maintain enrolment in studies was due to her falling pregnant and then becoming a first-time mother. Ms Tran stated that Asian cultures such as in Vietnam place great store on academic qualifications and Australian qualifications are highly regarded in that country. Furthermore it would be a great shame and loss to the applicant and her family if the applicant were not able to complete her studies in Australia.
The applicant’s agent made the following oral submissions at hearing in support of her application:
·     the applicant had no support in Australia to assist with her pregnancy and with the birth of her child. The child’s father did not support the applicant during this time and remains uninvolved in the life of the applicant and their child;
·     that the period of her non-enrolment is not lengthy given that it came about solely because of her falling pregnancy and giving birth;
·     she is a genuine student as evidenced by the fact that she completed Year 12 in Australia and has also completed Certificate IV in Business, being the first unit of her Business studies, before her Student visa was cancelled;
·     having graduated from high school in Australia it would be difficult for the applicant to transition to VET or tertiary studies in Vietnam. It is important that the applicant have the opportunity to complete her Business studies in Australia before she returns to Vietnam;
·     the applicant’s daughter, although born in Australia, is a citizen of Vietnam and the applicant is not pursuing any other migration outcome by seeking a further Student visa;
·     that cancellation of the applicant’s Student visa will adversely affect her dependent child, Elena Nguyen, who was born in Australia on 14 October 2017 in violation of Article 3.1 of the UN Convention on the Rights of the Child;
·     that the current COVID-19 pandemic has adversely affected Australia’s economy with the revenue generated from international students’ in the education sector falling sharply, so the Australian government should endeavour to accommodate those overseas students who wish to continue studying onshore;
·     the applicant is from Ho Chi Minh city, which in the agent’s experience, produces genuine students seeking an educational outcome from their overseas studies;
·     that the Tribunal should have regard to the evidence of the witness, Ms Tran who saw first-hand the challenges that the applicant had to deal with during her pregnancy and in the months following the birth of her child.
The purpose of the visa holder’s travel to and stay in Australia
The applicant arrived in Australia as the holder of a Student subclass 571 visa and completed high school Year 12 on this visa. She was granted a Student subclass 572 VET visa and enrolled in Business studies, commencing with a Certificate IV in Business. Whilst no evidence of her VET studies was submitted, the Tribunal is prepared to accept the applicant’s oral evidence of her enrolment in, and completion of her Certificate IV studies. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention for travel to and stay in Australia was to study.
At hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant explained that the sole reason for her failure to maintain enrolment was her falling pregnant, which resulted in her giving birth to her daughter. She had to manage as best she could without any family support. She did not make any specific claims regarding a compelling need to remain in Australia other than an assertion that she hopes to be able to complete her Business studies in Australia since “conditions are better here”.
The Tribunal also has regard to the evidence of the witness, Ms Tran and that of the applicant’s agent, which submit that Australian qualifications are well-regarded in Vietnam. Furthermore as the applicant has completed high school studies in Australia it would be better if she could complete her VET business qualifications here, since it would be difficult for her to transition to similar studies back in Vietnam.
The Tribunal considered the applicant’s evidence and notes she first arrived in Australia to complete her high school studies. Although the applicant claims that it is important that she be given the opportunity to complete her business studies onshore, she has not demonstrated a powerful or convincing reason for needing to stay in Australia. Were she to remain in Australia she would be pursuing her studies whilst being a full-time mother without the benefit of any family support. The Tribunal is not persuaded that the merits of her studying in Australia outweigh the benefits of her studying in Vietnam with the obvious advantages that she would do so in her native language and with the love and support of her family both for her and her young daughter. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.
The applicant provided testimony during the scheduled hearing that she was a genuine student; that she had completed her high school studies while holding a previous Student visa and had completed the Certificate IV in Business before falling pregnant. The applicant claimed it was her ambition to complete business studies in Australia. The Tribunal places some weight in favour of the visa not being cancelled.
The extent of compliance with visa conditions
There is no evidence before the Tribunal that the applicant has not complied with other visa conditions, which the Tribunal takes into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a Student visa and weighs against the applicant in this case.
The Tribunal notes the applicant’s claim that she never breached the conditions of her previous Schools Sector (Subclass 571) Student visa . With no evidence to the contrary, the Tribunal accepts the applicant has been compliant towards the conditions imposed on her previous substantive visa and gives this some weight in her favour.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
In her reply to the NOICC the applicant did not specifically address this consideration however the delegate accepted that there may be some financial and other hardships as a result of the cancellation.
During the hearing the applicant did not refer to any particular hardship that may arise as a result of her visa being cancelled. The evidence of the witness and the agent suggest that the applicant would suffer hardship in not being able to obtain an Australian qualification which would be highly regarded in her home country. The Tribunal is not persuaded by the claim that pursuing an Australian vocational qualification in the applicant’s difficult circumstances as a single mother with no onshore family support offers educational and career advantages which outweigh the merits of the applicant returning to Vietnam and to her family, where she may pursue similar studies in her native language with the love and support of her immediate family.
There was no evidence before the Tribunal suggesting that the applicant could not pursue similar business studies in Vietnam or that her high school matriculation in Australia was somehow disadvantageous to her ability to pursue such studies in her home country.
The Tribunal has considered the claims made by and on behalf of the applicant addressing this factor however it is not satisfied they demonstrate hardship of such a degree that the Tribunal should exercise the discretion not to cancel the visa.
The Tribunal accepts the applicant and her family invested money and time in the applicant’s travel to and stay in Australia, including fees thrown away as a consequence of the cancellation of the applicant’s enrolment and Student visa. These consequences are a foreseeable result of the cancellation of the visa.
The evidence before the Tribunal does not demonstrate that cancellation of the visa may have caused or may cause the applicant or members of her family a degree of emotional, psychological or psychiatric hardship that would weigh in favour of exercising its discretion to set aside cancellation of the visa. The Tribunal accordingly gives these factors a little weight towards the visa not being cancelled.
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.
According to the decision record, departmental records confirmed that the applicant was not meeting condition 8202 attached to her Student visa as she was not enrolled in a registered course for a lengthy period of time of 11 months before the decision to cancel her visa.
The applicant provided documentary and oral evidence regarding her pregnancy and the subsequent birth of her child and the challenges she faced in such circumstances. The Tribunal accepts that becoming a new mother – particularly without the support of a partner or other family members - can be difficult, emotionally challenging and perhaps even lead to episodes of anxiety or depression. The Tribunal places some weight on these circumstances explaining the applicant’s non-compliance.
However, based on the claims and evidence by and on behalf of the applicant, and upon considering them cumulatively, the Tribunal can find no extenuating circumstances beyond the applicant’s control whereby the applicant could not remain enrolled in her course or petition her educational provider to accommodate her circumstances, such as by granting a deferral of her studies. The Tribunal has no evidence of any severe medical or psychological problems to explain the long-term nature of her non-compliance. While the Tribunal acknowledges that the applicant’s pregnancy and her new motherhood were the cause of her failure to maintain enrolment, it does not assess them as circumstances that were beyond the applicant’s control.
The Tribunal gives some weight to the claims, cumulatively considered, that the applicant experienced mental stress and its associated challenges arising from her pregnancy and as a new parent of an infant, however the Tribunal does not accept these circumstances, which led to her failure to maintain enrolment, were extenuating, exceptional or beyond the applicant’s control.
Past and present conduct of the visa holder towards the Department

According to the decision record, there was no evidence that the applicant had been unco-operative towards the Department. The Tribunal gives this some weight in her favour.
Whether there would be consequential cancellations under s.140
The visas held by the applicant’s dependant, Elena Nguyen Bhagat would be cancelled under s.140 of the Act if the applicant’s Student visa is cancelled. The cancellation of the applicants’ visas would not result in the separation of the family unit; however, the Tribunal places some weight in favour of the applicant in considering this criterion.
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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
Cancellation of the visa would mean that the applicant and her dependant could potentially become unlawful non-citizens liable for detention and removal from Australia. The applicants would be subject to s.48 of the Migration Act which would limit their options for applying for a visa. In future the applicants would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, these are the intended consequences of the legislation and are not sufficient reason for the applicants’ visas to not be cancelled.
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
The Tribunal notes her agent’s submission that cancellation of the applicant’s Student visa would adversely affect her dependent child, Elena Nguyen, (born in Australia on 14 October 2017) in violation of Article 3.1 of the UN Convention on the Rights of the Child.
The Tribunal places no weight on this claim because the child lives with the applicant, her mother, whilst her biological father is not involved in her life or in the life of the applicant. Cancellation of the visa would not result in the applicant and her child being separated from each other. This is because the daughter’s visa will be cancelled as a consequence of s.140 of the Act. It will not result in a situation where some members of the family unit are able to remain in Australia while others must depart. In addition, the child is a citizen of Vietnam and both the applicant and her child will be eligible to apply for a Bridging Visa E to allow reasonable time to arrange to depart Australia.
There is no information before the Tribunal to indicate that visa cancellation would be in breach of Australia’s non-refoulement obligations, and the circumstances of this case would not engage Australia’s international obligations. The Tribunal gives this consideration little weight in favour of the applicant when considering whether to cancel the visa.
Any other relevant matters
There are no other relevant matters to be considered in the applicant’s case.
Conclusion
The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in her favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached her visa conditions to be significant. The Tribunal is not satisfied the personal challenges encountered by the applicant are sufficient reason for the visa not to be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first-named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.
Stephen Conwell
Member
ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)      The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)     the holder is enrolled in a registered course; or
(b)     in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a)     the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b)     the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.

[2020] AATA 3170

18 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction