Nguyen (Migration)

[2020] AATA 2762

Nguyen (Migration) [2020] AATA 2762 (5 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anh Tuan Nguyen

CASE NUMBER:  1913650

HOME AFFAIRS REFERENCE(S):          BCC2019/994735

MEMBER:Donna Petrovich

DATE:5 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 05 June 2020 at 1:25pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – extent of non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 May 2019 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 remained unenrolled from 21 June 2018 until 1 May 2019 a period of 11 months. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 4 May 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. 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

5. 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?

6. 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).

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

   Background

8. The applicant is a 33 year old single man from Vietnam, who first arrived in Australia in June 2013. He told the Tribunal that his family lived in Vietnam and owned a motel there.  His family consists of his mother and father, grandparents and siblings. He was granted a (Student) (Temporary) (573) on the 5 September 2017, with the intention of studying a Bachelor of Business.

9. The applicant told the Tribunal that he was employed in Vietnam in Banking and Finance, he had worked in a bank for 3 years, and worked as Officer in charge of Customer Credit, and Manager of Customer Relationships.

10. The applicant did not study for a period of 11 months and was sent a Notice of Intention to Consider Cancellation (NOICC) on the 1 May 2019; he had not been enrolled since the 21 June 2018, he did not respond to the NOICC.  The applicant chose to relocate to Western Australia from Melbourne to be with friends and failed to re-enrol successfully.

11. The applicant studied Cert IV Marketing 15 January 2014 to 14 July 2014. Diploma of Marketing 15 July 2014 to 14 January 2015, advanced Diploma Marketing 15 March 2015 to 28 February 2016. The applicant told the Tribunal that he hoped to advance his career in finance through the completion of a Bachelor of Business. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

12. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.

    The purpose of the visa holders travel and stay in Australia, whether the visa holder has a compelling need to travel and stay in Australia

13. In evidence provided by the applicant at the hearing the applicant told the Tribunal that his intention for travelling to Australia was to study a Bachelor of Business and improve his promotional and job opportunities in the finance sector in Vietnam.  Since undertaking study the applicant has been unable to achieve academic success and told the Tribunal he did not complete the Bachelor course as it proved too difficult.  The applicant has since undertaken a series of lesser courses, and at the time his visa was cancelled was not enrolled as he moved to Western Australia without securing a position, or letter of offer, before moving and had not been able to pay his fees for his existing course.  In considering this, the Tribunal takes the view that as the applicant has not achieved his objective of completing a Bachelor of Business and was working in finance in Vietnam prior to his arrival in Australia, it would seem that the applicant has no compelling reason to remain in Australia as he is not achieving his career or academic objectives by remaining in Australia. The Tribunal places no weight in favour of exercising discretion not to cancel.

    The extent of compliance with visa conditions

14. The applicant when asked at the hearing said that he understood the conditions of his visa and that one of those conditions was to maintain an enrolment in a registered course of study.  The applicant remained un-enrolled from 21 June 2018 until 1 May 2019 a period of 11 months which the Tribunal considers to be a significant breach of visa conditions. As such the Tribunal in consideration of this places no weight in favour of exercising discretion not to cancel.

    Degree of Hardship that may be caused

15. The applicant told the Tribunal that his family had invested a lot of time and money, and his time in Australia has been wasted if he is unable to continue and complete his study.  He told the Tribunal that his study was important to enable him to work and advance his career in Vietnam.  The applicant has done some study in Marketing, which he said he undertook because of difficulties in paying for his Bachelor course because of flooding in 2013 in Vietnam.  He told the Tribunal that the floods affected his family business which relies on Tourism. He also completed a Certificate III in Light Vehicle Technology in June 2017.  The courses seem to be inconsistent with the applicant’s desire to advance a career in Finance through completion of a Bachelor of Business and have been a significant deviation from the applicant’s objectives. The Tribunal in considering this is concerned that this does not meet the objective of being enrolled in a course that is commensurate with a higher education visa as these course serve the purpose of enrolment but are Vocational Education and Training courses.  The Tribunal fails to see how this will assist in progressing the applicant’s career in the finance sector in Vietnam, and places little weight in favour of the applicant in this regard.

16. The applicant also told the Tribunal that he had moved from Melbourne to Perth because he did not know anyone in Melbourne, was struggling to pass his Bachelor of Business, and owed the education provider money for enrolment, he had become un-enrolled, and wanted a fresh start in Western Australia.  He also told the Tribunal that he had a friend there and went there for friendship. He had hoped to obtain a further enrolment in Western Australia but was unable to get a letter of offer or enrolment, because of the money he owed for his previous enrolment.  The Tribunal in considering this evidence takes the view that the applicant has faced many issues which have proved to be an impediment to his continuing his study and in a higher level course, and he seems to have been unable to stabilise his situation. Whilst the Tribunal has some sympathy for the applicant’s circumstance the breach of a period of 11 months is significant and therefore the Tribunal places no weight in the applicant’s favour in this regard.   

17. He told the Tribunal that he was depressed about his circumstances but did not see a doctor, a psychiatrist or counsellor and did not tell the College or the Department of his situation.  Whilst the Tribunal has sympathy for the circumstances explained by the applicant, he has provided no proof of diagnosis of his condition, and in light of lack of evidence the Tribunal is unable to place any weight in this regard.

18. In relation to the hardship that the applicant may suffer, he is able to return home and work in the field he was working in previously in the finance and banking sector.  He has gained additional skills in Marketing and Light Vehicle Maintenance by completing those courses.  Whilst his parents may be disappointed and feel there has been a waste of time and money, the Tribunal does not form the view that this will cause great hardship to the applicant or his family.  On this basis the Tribunal has considered all of these circumstances and places no weight in favour of exercising discretion not to cancel in this case.

    Circumstances in which ground for cancellation arose    

19. The applicant told the Tribunal that he had been visiting a friend when he had trouble with the police.  He explained to the Tribunal that he was arrested and charged by the police in a case of mistaken identity.  He told the Tribunal that he was charged with by-passing an electricity supply of the house he was visiting. The Tribunal asked him why he did not explain to the police that it was not him, or his house. He told the Tribunal that he did not tell them it was not him.  He told the Tribunal that he was charged, went to court and was convicted, he was fined $100.  The applicant told the Tribunal that this was the reason for his stress, and the reason he wanted to go to Perth, because Stotts College had a campus there.

20. The applicant told the Tribunal that he updated his details and change of address and contact details in April.  He said he did not see the email from the Department, and says he only saw email on the 28 May for his cancellation.

21. The Tribunal was not provided with any material evidence of this circumstance by the applicant in relation to his being wrongly charged and convicted, and finds it implausible that the applicant would be charged in this way when he was not living at the property, but simply visiting a friend.  If there was a case of mistaken identity this could have been easily clarified by producing identification and proof that he was not a resident of the property, the Tribunal does not consider that this circumstance was beyond the applicant’s control. The Tribunal does however, accept that the applicant may have been distressed by the circumstances and wanted to make a fresh start in Western Australia. Unfortunately, the applicant did not ensure that he had a new enrolment and therefore made a significant breach of his visa by remaining un-enrolled for 11 months. In considering the circumstances as a whole; the Tribunal does not find the applicant’s explanation for remaining unenrolled plausible and without material evidence can place no significant weight in the applicant’s favour.  The Tribunal after weighing these circumstances can place no weight in favour of exercising discretion not to cancel.

    Past and present behaviour towards the department  

22. The applicant was courteous during the hearing and there is no evidence to suggest that his behaviour has been otherwise to the Department.  The Tribunal gives some weight in favour of the applicant in this regard.

    Whether there would be consequential cancellations under s.140

23. The applicant told the Tribunal that he was a single man, and although he shares a house with a female friend in Western Australia, there is no relationship with her or her child other than friendship.  The Tribunal does not find that there is any relevance to s.140 and places no weight in this regard.

    Whether there are any legal consequences

24. The Applicant told the Tribunal that there are no legal consequences in his home country and therefore there is no impediment to prevent him from returning home.     

    If it is a permanent visa

25. The applicant does not have any family in Australia and does not have business or other ties in Australia. This is not relevant in this case and therefore the Tribunal gives neutral weight in this regard.

    Any other relevant matters

26. The Tribunal did not find any other relevant matters and therefore gives no weight in this regard

27. Considering the circumstances as a whole the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Donna Petrovich
    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.