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

1. 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).

2. 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

3. 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.

4. The applicant appeared before the Tribunal on 28 January 2020 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing

6. 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

7. 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?

8. 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.

9. 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]).

10. 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.

11. 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.

12. 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

13. 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

14. 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.

15. 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.

16. 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

17. 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)

18. 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

19. The applicant’s visa was cancelled because he remained in Australia as the holder of a Student visa but did not demonstrate through his behaviour that he is a genuine student. The applicant gave reasons in writing and at the hearing for his failure to make academic progress and maintain enrolment in higher education. He explained that although he began his studies in Australia with an English course, he still had difficulties with the language and course content when he began his Bachelor degree. After failing the first year of his studies, the applicant was depressed and withdrew. He did not continue with the degree program and after being advised by a TAFE counsellor, the applicant started a Certificate III course which was meant to be a package leading to a Diploma and Bachelor degree.

20. The applicant still had difficulty with the course and according to written evidence; he decided the field he was pursuing was not suitable. The applicant provided documentary evidence of having consulted medical practitioners in 2016, 2017 and 2018 about his mental health which was significantly affecting his ability to study. This included being prescribed medications for his condition. He also provided psychiatrist’s reports dated 18 April and 22 May 2018 that sets out in detail his diagnosis, its symptoms and the treatment over time. The Tribunal was concerned the applicant had several periods when he was not enrolled to study from 2016 to 2018 as identified in the Department’s decision and that he did not seek leave or defer his studies as he should have. However, in the applicant’s case, The Tribunal accepts he was suffering from a medical condition that would have contributed to the circumstances in which the grounds for cancellation arose.

21. The applicant has since successfully completed a Diploma of Leadership and Management and has an offer to enrol in a Bachelor of Business. When asked about his ability to study a Bachelor degree the applicant indicated he has adapted to the study environment in Australia and has benefitted from treatment for his mental health. The applicant appeared confident he could study at the degree level since identifying a more suitable subject area.

22. The Tribunal places some weight in favour of the applicant in assessing whether the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. It appears he sought some assistance for his mental health during 2016 to 2018 which is supported by medical certificates. The psychiatrist’s reports from 2018 are thorough; they refer to the applicant’s specific diagnosis, his treatment and prognosis. A follow up report covers the applicant’s improvement and ongoing recovery. The Tribunal places additional weight on the fact that the applicant was forthcoming in his evidence at the hearing and accepted his failings in relation to his study history. He also appeared motivated to demonstrate that he is a genuine student.

    ·     past and present behaviour of the visa holder towards the department

23. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

24. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

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

25. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. Those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

26. When asked if he wished to comment on the legal consequences of cancellation the applicant said he has a sister living in Australia with her family and after he returns to Vietnam he would still like to be able to visit her. The applicant submitted the cancellation of his visa would make it difficult to do that in future and would also prevent him going elsewhere outside his home country, even as a tourist. The Tribunal places some weight on the applicant’s claims in this regard.

    ·     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

27. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

28. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

29. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

30. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are certainly aspects of the applicant’s case that weigh against him, on balance, the Tribunal considers he should be given the opportunity to demonstrate his academic plans are sincere and he is a genuine student. The Tribunal is satisfied the issues encountered by the applicant in this particular case are sufficient reason for the visa not to be cancelled in this case.

31. Considering the circumstances, the Tribunal concludes that the visa should not be cancelled.

    DECISION

32. 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 Banfield
    Member

    
    

    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.