Nguyen (Migration)

[2020] AATA 3422

Nguyen (Migration) [2020] AATA 3422 (27 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Dinh Ngoc Minh Nguyen

CASE NUMBER:  2003641

DIBP REFERENCE(S):  BCC2019/4944693

MEMBER:Elizabeth Tueno

DATE AND TIME OF

ORAL DECISION AND REASONS:         27 April 2020 at 11:08 am (VIC time)

DATE OF WRITTEN RECORD:                15 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 15 May 2020 at 12:45pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in a registered course – did not resume studies after surgery – applicant able to work – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 February 2020 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 27 April 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision for file number 2003641 for Miss Dinh Ngoc Minh Nguyen. This is an application for review of a decision dated 13 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s subclass 500 student visa. The cancellation of the visa was made under section 116 of the Migration Act.

4. The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202 in that she was not enrolled in a registered course.  The delegate was not satisfied that the grounds for cancelling the visa were outweighed by the grounds for not cancelling it.

5. The issue in the present case is whether the grounds for cancellation were made out and, if so, whether the visa should be cancelled.  The applicant appeared before the tribunal today via telephone to give evidence and present arguments.  She was assisted by an interpreter in the Vietnamese and English languages.

6. The issue in the present case is whether the applicant as the holder of a student visa has breached condition 8202 of the Migration Regulations. If the applicant has breached that condition under section 116 of the Migration Act the visa may be cancelled. Condition 8202 as it applies in this case requires that the applicant be enrolled in a registered course of study. In the present case the applicant’s visa was cancelled because she was not enrolled in a registered course. The applicant accepted that she had breached condition 8202 as she is not currently enrolled in a course of study.

7. She said her enrolment was cancelled on 1 June 2018 in both a Bachelor of Business and an Advanced Diploma of Business.  At this time when she withdrew from the courses she was studying the Advanced Diploma of Business.  She said she withdrew from the courses herself because of a medical condition although she later said in her evidence that she did not know whether she resumed her studies after surgery.  The applicant confirmed that she has not been enrolled in any course since 1 June 2018 and that she is not at present enrolled and studying in any course.

8. On the evidence before the tribunal the applicant has not maintained enrolment in a course of study since 1 June 2018.  Accordingly, the applicant has not complied with condition 8202.  Having found that the applicant has not complied with the condition of her visa the tribunal must consider whether the visa should be cancelled.

9. 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 the evidence of the applicant, and matters raised in the Department’s Procedures Advice Manual for general visa cancellation powers.

10. The applicant is a 23 year-old woman from Vietnam.  The applicant’s evidence is that she came to Australia to study.  She initially was enrolled to study at high school and then subsequently at a tertiary level.  As already noted, she has not been enrolled in a course since 1 June 2018.  She has worked at KFC from 2015 to early 2020.  She said she no longer works at KFC and does not have another job.  She said at the moment because of her visa troubles she cannot do anything other than consult her solicitor who the tribunal understand this to mean reference to her migration agent who is representing her.

11. The applicant said that she wants to stay in Australia because her mother wants her to do this as well and she wants to stay in Australia on a permanent basis.  She thinks she may have gone down the wrong path presumably meaning the student visa path.  There is no evidence presented at the hearing nor in the Department’s file that the applicant came to Australia for any purpose other than to study.  However, it is clear that the applicant is motivated to stay permanently in Australia regardless of whether or not she is studying.  The applicant has not provided any evidence as to a compelling need to remain in Australia other than her stated desire to do so.  Accordingly, the tribunal gives this weight in favour of cancelling the visa.

12. In relation to the circumstances in which the ground of cancellation arose the applicant gave the following evidence.  She said a mass was found in her pancreas in around September 2017.  She was referred to the Peter Mac Cancer Centre and attended on 15 November 2017.  After this she underwent an operation about two or three weeks later.  She stayed at hospital for one week and then recovered at home.

13. A few days later she was bleeding and had to be re-hospitalised for a few days.  Following her second discharge from hospital she stayed at home for approximately two months to recover.  She said that her doctor told her that it was a benign cancer presumably meaning that it was a benign tumour.  She did not require any further treatment other than check-ups after the surgery.

14. While there was no medical documentation provided to the tribunal, the tribunal notes that the applicant has provided medical documents to the Department, which confirmed a mass on her pancreas and also confirmed her appointment on 15 November at Peter Mac.  The tribunal accepts the applicant’s evidence in relation to her treatment and recovery from her (indistinct).

15. However, the tribunal has concerns about her evidence and reasons as to why she did not resume her studies.  The applicant said that she could not remember whether or not she in fact did resume her studies.  She did acknowledge that she has not studied since 1 June 2018.  When asked by the tribunal what she has been doing with herself since recovering from the surgery she said that she has worked at KFC.  She said that she did not resume her studies because she felt depressed and just needed to earn a wage.  She confirmed that she did not see a doctor or take any medication or have any treatment in relation to feeling depressed.  She said that she did not know how to resume her studies.

16. She said that she has been assisted with this review process by a migration agent although they have not attended today’s hearing.  The tribunal considered it significant that the applicant has been able to work for the past two years after recovering from her surgery despite purportedly having depression.  The depression did not prevent her from working and the tribunal considers it would not have prevented her from studying since there is no medical evidence to support this finding.

17. As to the applicant’s reasons of not knowing what to do or how to resume her studies the tribunal notes that she has been represented in these hearings by a migration agent and could have made appropriate inquiries at any stage either with a migration agent or education agent or approached education providers herself to enrol in a course.  She has not made any attempts to re-enrol in any course since 1 June 2018.  In light of the above circumstances the tribunal gives this significant weight in favour of cancelling the visa.

18. In relation to the extent of the applicant’s compliance with her visa conditions aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of her visa.  However, the applicant has not been enrolled in a course of study for nearly two years, which is a significant period of time to be in breach of condition 8202.  Accordingly, the tribunal gives this some weight in favour of cancelling the visa.

19. When asked what hardship might be caused if her visa were to be cancelled the applicant gave the following evidence.  She said she has been in Australia for 10 years and now does not know what to do.  She is so familiar with the Australian lifestyle that to return to Vietnam would be difficult for her to integrate into that society.  Financially she said that she would have nothing if she returns to Vietnam.  She would have to start her studies all over again in Vietnam.  She said she has not told her mother that her visa has been cancelled.  Her mother spent a lot of money for her to study here.  She is old and it would cause her mother significant stress if she were to find out.

20. The tribunal accepts that the applicant will suffer some hardship if she has to return to her home country without completing her tertiary education.  Accordingly, the tribunal gives this some weight against cancelling the visa.

21. In relation to her past and present behaviour towards the Department, as noted earlier, aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with her other conditions of the visa.  Nor is there any evidence to suggest that the applicant has not engaged appropriately with the Department.  Accordingly, the tribunal gives this some weight against cancelling the visa.

22. There are no consequential cancellations under section 140 for consideration.  As to any mandatory legal consequences, if the visa is cancelled, the applicant gave no evidence about this nor did she make any submissions about it.  In her letter to the Department the applicant stated that there were no legal consequences.

23. There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa.  While the applicant could make another student visa application offshore she would not be permitted to make an onshore visa application as a result of the cancellation.  Subject to any appeal rights she may exercise if the applicant chooses to remain in Australia unlawfully she could be liable for removal and detention.  The applicant could also be precluded from being granted a further visa for a period of three years as a result of Public Interest Criterion 4013.

24. The tribunal is satisfied that those consequences are intended lawful consequences of the legislation and in the applicant’s case do not mean that the visa should not be cancelled.  The tribunal gives no weight against cancelling the visa under this consideration.

25. There is nothing before the tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations.  Accordingly, the tribunal gives no weight to cancelling the visa under this consideration.

26. The applicant did not give evidence about any other matter that would be relevant to the review of the cancellation of her student visa.

27. Considering the circumstances as a whole placing particular weight on the grounds in which the cancellation arose and the lack of compelling need to remain in Australia, the tribunal finds that the factors that weigh in favour of cancelling the visa outweigh the factors against cancelling the visa.  Accordingly, the tribunal finds that the visa should be cancelled.  The tribunal affirms the decision to cancel the applicant’s visa.

    DECISION

28. The Tribunal affirms the decision under review.

    Elizabeth Tueno
    Member