NGUYEN (Migration) - [2020] AATA 145

NGUYEN (Migration) [2020] AATA 145 (29 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Duc Dung NGUYEN
CASE NUMBER:  1818356
HOME AFFAIRS REFERENCE(S):          BCC2018/952316
MEMBER:Wendy Banfield
DATE:29 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 29 January 2020 at 6:32pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – genuine student – failure to maintain enrolment – unsatisfactory academic progress – study gaps – consideration of discretion – mental health issues – benefitted from treatment – identified a more suitable subject area – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43
CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 14 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(fa)(i). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background
The applicant is a citizen of Vietnam and is currently 23 years old. He came to Australia on 14 October 2014 with the intention of studying a Bachelor degree in Early Childhood Education. The applicant completed an English course but did not pass the first year of his degree. Since his arrival the applicant has completed studies in English and a Diploma of Leadership and Management. He is planning to pursue a Bachelor of Business in 2020.
The applicant appeared before the Tribunal on 28 January 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: NGUYEN (Migration) [2020] AATA 145
Case: [2020] AATA 145
Decision Date: 29 January 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of Mr. Nguyen, a holder of a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The cancellation was based on the ground that Mr. Nguyen was not a genuine student, evidenced by his failure to maintain enrolment, unsatisfactory academic progress, and study gaps.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) was established, and if so, whether to exercise its discretion to cancel the visa. The applicant conceded that grounds for cancellation existed, specifically admitting to failing to make academic progress, maintain enrolment, and having study gaps.

The Tribunal found that the ground for cancellation was made out. However, it then considered whether to exercise its discretion not to cancel the visa. In doing so, the Tribunal had regard to the applicant's stated intention to study in Australia for better employment prospects, the extent of his compliance with other visa conditions (which were not in dispute), and the potential hardship that cancellation would cause. The Tribunal accepted that cancellation would cause moderate hardship, noting the applicant's past mental health issues, for which he had received beneficial treatment, and the disruption to his career path in Vietnam.

Considering all the circumstances, the Tribunal concluded that the visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Nguyen's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCE Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.Does the ground for cancellation exist? A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]). For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision. In his evidence at the Tribunal hearing the applicant accepted there were grounds to cancel his student visa. He did not dispute the Department’s findings that he failed to make academic progress or maintain enrolment in higher education, also that there were gaps in his enrolment and courses he was enrolled in had been cancelled. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion 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’.· 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

Decision

Reasons for decision

Considering the circumstances, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.Wendy BanfieldMember ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994…(1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.(1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:(a)because of the conduct of the holder; or(b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or(c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or(d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion 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’.· 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 The applicant came to Australia as the holder of a Subclass 573 visa to study a Bachelor degree. He completed an English course and commenced a Bachelor in Early Childhood Education. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. He gave evidence that international companies are investing in Vietnam and that by completing higher education here, he will have a better chance of finding employment with a good salary. According the applicant, he needs to study in Australia rather than Vietnam because there is greater value in an overseas education. The Tribunal is not satisfied the applicant has demonstrated what could be considered a particularly strong or compelling need to remain in Australia and does not place any weight on the stated reasons for needing to remain in Australia. · the extent of compliance with visa conditions There is no evidence before the Tribunal that the applicant has not complied with other visa conditions other than those he has accepted, and the Tribunal has taken this into account. · degree of hardship that may be caused (financial, psychological, emotional or other hardship) During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant referred to his mental health issues in the past and said he feared having a breakdown if his visa is cancelled. The medical evidence provided indicates the applicant has sought treatment for his psychological issues and benefitted from treatment in this regard. He also submitted his career path in Vietnam will be disrupted and it would be difficult for him to study at a university in his home country due to his absence for five years. The Tribunal accepts there will be a moderate degree of hardship that would be caused by the visa being cancelled and places some weight in favour of the applicant on this criterion. · circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control