Nguyen (Migration) - [2019] AATA 6851

Nguyen (Migration) [2019] AATA 6851 (20 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anh Viet Nguyen
CASE NUMBER:  1834555
HOME AFFAIRS REFERENCE(S):         BCC2018/4043720
MEMBER:Dominic Triaca
DATE:20 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicants’ Subclass 500 (Student) visa.

Statement made on 20 December 2019 at 3:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – enrolment in and completion of work-related, non-registered course – inadvertent breach – applicant likely unaware of breach – study history – completion of registered courses – work history – subclass 457 visa application – bridging visa – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)
CASES

Boettcher v Driscoll (2014) SASC 86
de Angelis v de Angelis [2003] VSC 432
Dimic v Djekovic (2014) NSWSC 1502
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 19 November 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(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not had not been enrolled in a registered course of study since 27 November 2017. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 24 July 2019 to give evidence and present arguments.
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
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The delegate found that the applicant had not been enrolled in a registered course of study for the period 27 November 2017 until 19 November 2018, a period of approximately 12 months.
In his evidence before the Tribunal, the applicant confirmed that he had not been enrolled in a registered course of study since 27 November 2017 and that the delegate’s decision was correct in that regard.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course for a period of approximately 12 months. Accordingly, the applicant has not complied with condition 8202(2).
Consideration of the discretion to cancel the visa
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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’
Applicant’s Evidence
The applicant is a 30 year old citizen of Vietnam. He arrived in Australia in October 2012. He has a good academic history, having completed a Certificate III and IV and Diploma of Business and a Certificate III and IV in Commercial Cookery. He completed the Certificate IV in Commercial Cookery in November 2017.
He states that after he completed the Certificate IV in Commercial Cookery he applied for a 457 Visa and reduced his studying to undertake HACCAP course to enable him to become a food health safety officer.
Since about 2014 he has worked as a chef in a business known as Banoi in Melbourne that operates 2 restaurants. He has worked for his current employer throughout that time as a chef and also a supervisor in a factory owned by the company in Kensington. The applicant appears to have been with the company since its inception and has become an important member of the company. He states that he has 14 staff reporting to him in the factory. In a letter prepared by the Chief Executive Officer of the company he is described as irreplaceable to the business.
The applicant applied for a 457 Visa in November 2017 and was supported by his employer in this application. The 457 Visa application was refused by a delegate of the Department in January 2019 and is now the subject of an appeal.
The applicant stated that he believed his student visa ceased following the completion of his Certificate IV in Commercial Cookery in November 2017 and that from the time of his application for a 457 Visa on 31 December 2017 he was resident in Australia on a Bridging Visa A, which he was granted at that time.
He then commenced studying his HACCAP in late 2017 and he obtained his Food Supervisor certificate from the Australian Institute of Food safety on 14 November 2018.
At the time of his 457 Application he had engaged a Migration agent and he was not advised he was obliged to maintain his enrolment despite the fact he had completed his studies and had been granted a Bridging Visa.
He states that he wishes to study a Diploma and Bachelor of Hospitality, in order to increase his knowledge and assist him in his hospitality work.
This is a difficult case to assess. The applicant’s academic history is good. Since arriving in Australia the applicant appears to have conducted himself in exactly the way a student on a student visa ought to, ie. He has studied in approved courses and progressed academically. He is seeking to remain in Australia in order to continue studying in courses that appear to be consistent with his previous education and also related to his present and future employment. The Tribunal was impressed by the applicant’s evidence. He was candid with the Tribunal and made concessions where appropriate. He is obviously highly regarded by his employer.
However, the applicant has also breached the conditions of the visa and this has led to the cancellation of the visa by the Department. The question for the Tribunal to grapple with is whether, the circumstances in which the applicant ceased to be enrolled in an approved course were such that they warrant the cancellation of the applicant’s visa and the consequences that follow.
On balance, having regard to all the matters before the Tribunal, I consider that the applicant‘s visa ought not be cancelled. I elaborate on the reasons below, but essentially the following matters weigh in his favour:
(a)Firstly, his academic record is good, he has demonstrated a capacity and willingness to study when given the opportunity to do so. Whilst he did not study in an approved course in 2018, he did successfully complete the HACCAP course which shows a continued purpose to study and I consider it is likely he will continue to study if he is allowed to do so.
(b)Secondly, I accept the applicant’s contention that he was placed in a confusing situation in late 2017 when he completed his Certificate IV in Commercial Cookery and was subsequently granted a Bridging Visa A after making his 457 Visa Application. In this regard, it appears that the applicant’s breach was not apparent to the applicant at the relevant time and I take into account that it appears to have been an inadvertent breach rather than a deliberate or flagrant breach.
(c)Thirdly, the applicant contends that the effect of cancellation of the student visa has led to the application of Public Interest Criterion 4103 to his 457 visa application and this renders his 457 visa application unattainable. The legal consequences of the decision are a relevant consideration and I have taken into consideration the potential effect on the applicant‘s further visa application and weighed this in his favour.
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 term compelling was the subject of detailed consideration by Crennan J (as her Honour was then) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs[1]. Her Honour set out the jurisprudence in relation to the words “compel” and “compelling” and the various dictionary meanings and stated, relevantly:
“At [35] A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.“
1. [1] Paduano v Minister for Immigration and Multicultural and Indigenous Affairs & Migration Review Tribunal [2005] FCA 211; (2005) 143 FCR 204 [31] – [45]
Commenting further on the adjective “compelling” in the Regulations, at [37], Crennan J said: The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’.
“Need” is a relative concept.[2] It has been described as different from “want”. Need has been said to be a more flexible word than it may first appear. “In need of” plainly means more than want, but if falls far short of “cannot survive without.”[3] Need and want are not interchangeable.
[2] Dimic v Djekovic (2014) NSWSC 1502 per Hallen J at [111]; de Angelis v de angelis [2003] VSC 432, per Dodds Streeton J, at [45];
[3]R (On the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54] Boettcher v Driscoll (2014) SASC 86 at [41] per David J
Having regard to these authorities, I take the phrase compelling need to have the ordinary meaning of the words, compelling, demanding attention or demanding interest or being forceful, and need requiring something more than a mere want, but falling far short of requiring the applicant to demonstrate necessity in the sense that he cannot survive without it.
The Tribunal accepts that the applicant’s initial purpose of travel to Australia was to study and that he enrolled in a registered course in accordance with that purpose. He has maintained his purpose of study for the majority of his time in Australia and the Tribunal considers he has a good academic record. The Tribunal also accepts the applicant is likely to undertake further study should he be given the opportunity to do so.
The proposed further study seems to naturally follow the study he has completed and is consistent with his level of education. The Tribunal considers the applicant has advanced a forceful case in favour of having the opportunity to study further and in these circumstances, the Tribunal considers he has advanced compelling reasons to be allowed to remain in Australia and this weighs in favour of the application.
The extent of compliance with visa conditions.
Save for the breach of the applicant’s student visa, the subject of this application, the applicant does not appear to have any other compliance issues.
The applicant confirmed that he was not enrolled in a registered course of study from 27 November 2017 and the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for a substantial period of time weighs towards the cancelling of the visa unless the Tribunal accepts the reasons for non- enrolment.
The applicant’s reasons for non-enrolment that he assumed that the student visa was brought to an end by the issue of a Bridging Visa upon his application for a 457 visa at the conclusion of 2017. This was incorrect and the Tribunal considers the appropriate course was, in the event of any confusion, to engage with the Department and clarify the situation.
However, on the evidence, it appears unlikely that the applicant was aware of any confusion in relation to his status so was not on alert to the fact that he had an issue to resolve. The applicant had engaged a Migration agent at the time and he had been provided with a Bridging Visa. In these circumstances it seems there is a legitimate basis for his confusion at the relevant time.
The Tribunal considers the applicant has demonstrated an intention to study in Australia and has explained the reasons for his breach and failure to remedy that situation. Accordingly, the Tribunal gives this factor weight in the applicant’s favour.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship).
The applicant states that he will suffer hardship if he is forced to return to his home country due to the fact that his skill set, specifically a background in food health and safety and supervising others in this regard, are not skills that are highly valued in his home country. The Tribunal also has regard to the fact that the cancellation of the student visa has the potential to negatively impact on the applicant‘s 457 visa application and this may be a significant hardship to the applicant.
Accordingly, the Tribunal gives this factor some weight towards not cancelling the visa.
Past and present behaviour of the visa holder towards the department.
The applicant appears to have co-operated with the Department and there is no adverse evidence against the applicant in this regard. I give this some weight towards not cancelling the visa.
Whether there would be any consequential cancellations under s 140
There is no evidence suggesting that if the applicant’s visa is cancelled, any other persons visa will be cancelled 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, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.
The Tribunal recognises that, if the visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. However, he may be eligible for a bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalise his affairs in Australia before departing.
If his visa is cancelled, the Tribunal also recognises that he will be subject to s 48 of the Act which means he will have limited options when applying for further visas, including the possibility that he may not be granted a temporary visa for 3 years from the date of the cancellation for a visa that requires Public Interest Criterion 4013 to be met.
As set out above, the Tribunal has given this factor weight in favour of the applicant. The breach of the applicant’s student visa was relatively minor and must be viewed in the context that the applicant’s track record in Australia is a good one. The Tribunal does not consider that this particular breach of a student visa ought to operate so as to have a detrimental impact to the applicant’s subsequent visa application.
Whether any international obligations, including non-recoupment and best interests of the children as primary consideration, would be breached as a result of the cancellation.
The circumstances of the case are not such as to engage Australia’s international obligations.
If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.
This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.
Any other relevant matters.
There appear to be no other relevant matters of significance in relation to the present application for review.
Considering the circumstances as a whole, 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.
D Triaca
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.