Nguyen (Migration)

[2020] AATA 568

Nguyen (Migration) [2020] AATA 568 (24 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Trang Nguyen

CASE NUMBER:  1921158

HOME AFFAIRS REFERENCE(S):          BCC2019/2675281

MEMBER:Donna Petrovich

DATE:24 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 24 February 2020 at 1:54pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – multiple cancellations of courses – pregnancy, miscarriage, breakdown of relationship and current pregnancy – medical evidence – credibility – no approach to education provider or department – intention to run own business in Australia – mother’s illness – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 26 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector 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 had not been enrolled in a course of study since the 17 October 2018 as confirmed by the applicant’s PRISM records. Therefor the applicant had not complied with the requirements of subclauses (2)(a) of condition 8202. 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 21 January 2020 to give evidence and present arguments. The applicant told the Tribunal that she came here to study and was not told by the College that she had to re-enrol or that her enrolment had been cancelled. She told the Tribunal that she disagreed that she had not been enrolled since the 17 June 2018 and said that the timeframe  was from  March 2019 as this would be when she was due to recommence her studies. Prism records included in the delegate’s decision and provided by the applicant in the Department of Immigrations decision, differ from this view and stated that the applicant was not enrolled from 17 October 2018 until Notice of Intention to Consider Cancelling was sent on the 16 July 2019.

4.The applicant told the Tribunal that she had family in Vietnam her Mother and Father and Brother and Sister and that she had come to Australia to study straight from High School and had not worked or done further studies in her home country prior to coming to Australia.  The applicant told the Tribunal that she had returned home on two occasions to visit her family on the 2 February 2009 and the 19 February 2019. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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 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).

7.In the present case the applicant undertook the following studies;

·General English from the 14 July 2016 until 16 December 2016 which was Completed

·English for further studies 9 January 2017 -2 July 2017 which was Completed

·Diploma of Business undertaken from 24 July 2017 until 30 June 2019 which was Completed

·Master of Financial Analysis (investment) undertaken from 24 July 2017 – 30 June 2019 which was Cancelled

·Diploma of Business 28 February 2018 - 17 October 2018 which was Cancelled

·Bachelor of Business 5 March 2018 – 31 December 2019 which was Cancelled

·Diploma of Leadership and Management 12 August 2019 – 9 August 2020 Cancelled

8.The applicant told the Tribunal that she did not proceed with the Masters course because she lacked confidence in her language skills.

9.The applicant told the Tribunal that at the time that her course was cancelled that she was having difficulties with sickness as she was pregnant at this time; the Tribunal confirmed with the applicant that this pregnancy had ended in a miscarriage, and she is not with father of the baby and that the relationship had broken down. The applicant informed the Tribunal that she is currently three months pregnant, but is not with the father of the baby she is carrying now and confirmed she is not in a relationship with him.

10.The applicant told the Tribunal that she did not talk to the college during the time of the cancellation. She did not seek counselling or speak to her course co-ordinator. The applicant told the Tribunal that the college did not inform her of the cancellation of her enrolment, and she did not know what had happened.  She also told the Tribunal that she was looking for another school at the time.

11.The Tribunal is concerned about the disparity in evidence and the voracity in the applicants claim that she miscarried her first pregnancy, and her illness at this time, which she told the Tribunal was the cause of her inability to study. This differs from the evidence provided to the Department and which was included in the Delegates Decision and which was provided by the Applicant to the Tribunal that, “It is possible that Thi Trang Nguyen was pregnant earlier than she has stated as she claimed she is a mother now” the delegate considered Thi Trang Nguyen may have been pregnant in 2018/2019. The Tribunal has difficulty in accepting the timeframes presented by the applicant and therefore the credibility of the evidence of the applicant. This in no way undermines the seriousness of the health issues suffered by the applicant or the effect that can be experienced because of miscarriage. The Tribunal places no weight in favour of exercising discretion to cancel on the basis of credibility of evidence in this case.    

12.The Tribunal accepts the submission that the applicant did not have a full term pregnancy as she miscarried which is indicated but not confirmed by the medical evidence provided by the applicant, but is concerned by the conflicting evidence about her being a mother which was provided previously to the Department of Immigration and Border protection and included in the decision record. The medical report from Radiology Imaging solutions on 7 August 2018 provided by the applicant for her first pregnancy confirms that at 6 or 7 weeks there was no foetal heartbeat and that in the medical reports Conclusion: Interval scan findings are suggestive of a non-viable pregnancy.  This is verified by blood test conducted by Dorevitch Pathology on 17 August 2019, which states that gestational sac present but no foetal pole seen - no cardiac activities and has not been proportional growth – indicating a likely Blind ovum. The Tribunal accepts that these circumstances are beyond the control of the applicant.  However the reports provided fail to identify precisely the complications experienced by the applicant and fails to detail any consultations or examinations that had been performed to determine the applicant’s condition. Finally, there is no report that details how her condition would affect her studies and her ability to attend classes or advise the department of her circumstances.  The applicant did not provide any specialist evidence that she would not be able to comply with the conditions of her visa.  That is, that she be enrolled in a registered course.

13.Therefore, in circumstances where the applicant was aware of her visa conditions the Tribunal does not accept the applicant’s evidence that she had not been enrolled  in a registered course from 17 October 2018, by reason of complications she had experience as a result of her pregnancy.

14.The tribunal gives no weight to the applicant’s statement that she breached the conditions of her visa due to complications with her pregnancy and miscarriage. Accordingly, the Tribunal places no weight on this consideration in the applicants favour.

15.The applicant also claimed that her mother’s illness also prevented her from studying. The Tribunal is sympathetic to the applicant in regard to the illness of her mother, and accepts that illness during pregnancy can be debilitating. The Tribunal in considering these circumstances also finds it difficult to comprehend why the applicant did not report these matters to her education provider, or ask for a deferral as she had full knowledge that her lack of enrolment would impact on her visa. The Tribunal in considering this places little weight in favour of exercising discretion not to cancel.

16.On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

17.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 holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

18.The applicant told the Tribunal that purpose of her travel and stay in Australia was to study so that she could operate and manage her own business so that she could support herself and live independently.

19.The Tribunal is satisfied that the applicant’s intention at the time of the visa application does not constitute a reason not to cancel her visa. The applicant did not maintain her enrolment in a registered course in accordance with her visa conditions. The applicant conceded to the Tribunal that she had breached condition 8202(2) (A) by failing to be enrolled in a course from 17 July 2018, the applicant failed to maintain her enrolment in a registered course until the cancellation of her visa, a period of approximately nine months while remaining in Australia on a visa granted for the purpose of study. The Tribunal also takes into consideration that the applicant was not enrolled in a Masters course for which her visa was granted. The Tribunal considers that the applicant has not complied with the conditions of her visa and gives no weight in favour of exercising discretion not to cancel.

The extent of compliance with visa conditions

20.The applicants’ enrolment was cancelled on 17 October 2018 and her visa was cancelled on 26 July 2019.

21.Condition 8202(2) (a) states that the visa holder meets the visa requirements if the visa holder is enrolled in a registered course.  Based on the evidence available to the Tribunal, including Prisms and the applicant’s submission at the Tribunal hearing on 21 January 2020, it finds the applicant has not been enrolled in a registered course of study since 17 October 2018.

22.The applicant told the Tribunal at the hearing that she disagreed that she was required to be enrolled in a course before  March 2019, which is when the applicant said the course was due to commence. The Tribunal has considered this and does not agree with the applicant and therefore places no weight in favour of exercising discretion not to cancel.   

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

23.The applicant told the Tribunal that it was important that she could complete a course in Leadership and Management because she wanted to open her own business in the field of beauty care.  The applicant told the tribunal that she had been supporting herself previously as a nail technician for 20 hour per fortnight and would like to gain the skills to run her own business.  When asked where she would like to run the business the applicant responded by saying “in the city”.  When asked which city she replied Melbourne.  The Tribunal considers this to be outside of the conditions of her visa which is to study a Master’s Degree, for which she was granted a student (subclass 573) visa and it would seem that her intent is not to return home at the completion of her study, but rather intend to stay in Melbourne and open a beauty business. The Tribunal in considering this finds that the applicant to be disingenuous in her intent to complete her study and then return to her home country.  In this circumstance the Tribunal places significant weight against the applicant in giving any discretion to not cancel.

24.In relation to the hardship that this will cause the applicant when asked the applicant said she would appeal if there was a negative decision and that it would cause her parents hardship as they had been sending her money to live and to study. The Tribunal accepts that the applicant’s parents will be disappointed but does not accept any real hardship will be experienced if the visa is cancelled. Therefore, the Tribunal places no weight in favour in this regard.   

25.The Tribunal accepts by not completing an advanced Diploma in Leadership and Management that the applicant considers that she would not be as well prepared to open a  Beauty business on her return to Vietnam. However the applicant does have work experience in this field and has previously completed a Diploma of Business in October 2018. The Tribunal finds that although the applicant has not been successful in all of her enrolments and that may cause the applicant some degree of disappointment, that she has more than enough skills to achieve her career goal of opening a Beauty Salon in her home country. The Tribunal has considered these matters carefully and weighed them in terms of the hardship they might result in. The Tribunal finds that while there is some weight in favour of the Applicant’s visa not being cancelled, that weight is a lesser consideration than the significance of the non-compliance. 

26.The Tribunal notes that in the event the applicant’s visa is cancelled under s.48 of the Act she may have limited options available to her if applying for further visas in Australia.  In addition she will be subject to Public Interest Criterion 4013 which means that she  may not be granted temporary visas for three years from the date of cancellation.

Circumstances in which ground of cancellation arose

27.When asked about the Partner visa which was mentioned in the Decision record that was provided to the Tribunal by the applicant, the applicant told the Tribunal that was no longer relevant because that relationship had broken down. When the Tribunal asked about the circumstance the applicant told the Tribunal that she did not want to discuss this as the relationship was over. There was no evidence provided of family violence. The Tribunal after consideration of this evidence gives this neutral weight.

28.The applicant told the Tribunal that this was a difficult time for her as her mother had come to Australia from Vietnam to seek treatment for a tumour during the period of time 8 October 2019 and 23 October 2019. The Tribunal after consideration gives this some minor weight in favour.

29.The applicant also submitted to the Tribunal that she was suffering from severe pregnancy symptoms and provided copies of reports during the period of time 23 April 2019 and 9 January 2020, which discussed reports from various blood tests, from Le Phan Medical Centre on 21 August 2019, results from a pelvic ultrasound on 9 August, and an Obstetric Ultrasound on 23 July 2019. A report dated the 7 August 2019 concluded that there was that interval sac and findings “that are suggestive of a no-viable pregnancy.” The Tribunal accept this evidence and gives some weight against, as there was sufficient time to notify the education provider of these circumstances to avoid cancellation of enrolment.  

Past and present behaviour of the visa holder towards the department

30.The applicant has been co-operative and courteous in her dealings with the Tribunal. As such, no adverse information has been provided to the Tribunal and as such some weight is given to her in consideration of this factor.  The Tribunal gives some small weight in favour in this regard.

Whether there would be consequential cancellations under s.140

31.There are no other people who would be affected at this stage if the applicant’s visa were to be cancelled. The applicant told the Tribunal that she is currently 3 months pregnant. 

32.The Tribunal has considered the Convention of the Rights of the Child (CROC) and whether the cancellation would not be in the best interest of the applicant’s child.  There is no evidence to suggest that cancellation of the applicant visa will result in the separation of the applicant and her child, in particular because the applicant provided evidence that she is not involved with the father of her unborn child in any way.  The Tribunal is satisfied that the potential consequences of cancellation of the visa do not provide a significant reason not to cancel.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention.

33.The Tribunal acknowledges that the cancellation of the visa would have the effect that the Applicant may become an unlawful non-citizen and may therefore be liable to detention and removal under the Act if she decided not to leave Australia voluntarily.  Having made that finding, we also note that the applicant would have available to her the possibility of applying for a bridging visa E, which would allow her to finalise her outstanding matters.

34.The Tribunal further acknowledges that, if the visa is cancelled, the Applicant will be subject to section 48 of the Act meaning she would have limited options to apply for further visas in Australia.  The Applicant would also be subject to Public Interest Criterion 4013 with the effect that she may not be granted a temporary visa for a period of three years from the date of the cancellation.

35.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

36.The circumstances of this case are such that they would not engage Australia’s international obligations before the delegate; the Tribunal is satisfied that there are no other relevant factors in relation to this case.

If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

37.There is no evidence of any significant or other ties. The Tribunal places no weight in this regard.

Any other relevant matters

38.Having considered the evidence provided by the applicant at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

39.Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

40.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  (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.