NGUYEN (Migration)

[2019] AATA 6516

NGUYEN (Migration) [2019] AATA 6516 (19 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Viet Tram Anh Nguyen

CASE NUMBER:  1727448

HOME AFFAIRS REFERENCE(S):          BCC2017/3229761

MEMBER:D. Petrovich

DATE:19 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 19 November 2019 at 11:28am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – enrolment ceased – family bereavement – failed attempts to re-enrol – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2; Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 November 2017 made by a delegate of the Minister for Immigration and Border Protection 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 complied with the condition of the visa. 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 2 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

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.

   Background

7. The applicant is a 23 year old woman from Vietnam who was granted a Student (Temporary) (class TU) Higher Education Sector (Subclass 573) on 5 June 2015.  The applicant arrived in Melbourne on 4 July 2015 and enrolled in English language initially and then Certificate iii in Commercial Cookery in January 2017.  The Provider Registration and International Student Management System (PRISMS) records contained in the Delegate’s decision and provided by the applicant detailed the applicant’s enrolment in the course was discontinued on 25^th July 2017 and failure to enrol which was confirmed in a letter to the Applicant on 22 August 2017 by Academies Australia Polytechnic.

8. The applicant requested an extension of time whilst she worked with the College AAPOLY. AAPOLY later sent a Cancellation of Enrolment on 22 August 2017. The applicant was advised in the letter that this may affect her student visa and she was strongly advised to contact the Department of Immigration and Border Protection.

9. The Applicant makes written submission by email that she had to fly back to Vietnam to resolve a family issue. Flight records indicate this was in January –February 2017. The applicant was warned by the College AAPOLY in relation to her enrolment.

10. A Notice of Intention to Consider Cancellation (NOICC) dated 17 October 2017 was sent to the applicant advising that she was in breach of a condition of her visa. The applicant did not dispute the grounds for cancellation she told the Department in her letter of appeal that she attempted to enrol but was unable to and acknowledged that she had received an email from the education provider regarding her cancellation of her COE. The applicant advised the delegate that she had not been able to attend College due to her depression which was as a result of the death of her Grandmother, and a family and Business issues which had caused her depression.

11. In response to the NOICC the applicant sent to the following to the Department of Immigration and Border Protection.

    ·     Email to AApoly regarding her appeal 12 April 2017

    ·     Email to follow up with appeal 2 May 2017

    ·     Email from Ms Tracy requesting the result of the applicant’s appeal and permission to resume study

    ·     Death certificate of Grandmother, birth certificate and father’s CV

    ·     Cancelation notice from AAPOLY 22 August 2017

    ·     Declaration to come back to study

    ·     Email from Immigration agent with attached International student offer and enrolment agreement

    Did the applicant comply with Condition 8202?

12. 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).

13. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. Based on the PRISMS record provided by the applicant and included in the delegate’s decision the applicant had not been enrolled in a course as is required in condition 8202(2) and therefore does not comply with the condition.

14. In her response to the NOIC the applicant appears not to accept that she was not enrolled in a course since 25 July 2017, and states the College AAPOLY sent her cancellation on 22 August 2017. She explains the reason her enrolment was cancelled was stated that because she failed to enrol in the April semester. The applicant disputes this and says that she attempted to enrol but was not allowed to do so and was advised to appeal.

15. The applicant in an appeal letter to the University which was included in the Department file admitted to having a difficult semester on the basis that she had undergone stress relating to family issues around business in Vietnam.  She returned home and according to travel records in the Department file showing her travel movements her flight departed for Vietnam on the 10 January 2017 and returned to Melbourne on 5 February 2017. Under normal circumstances this would not have prevented the applicant from attending class as this is potentially before the academic year had commenced.

16. In her appeal letter to the College AAPOLY stating that she disputed that she had a zero attendance at classes. The applicant submitted in her letter to the College that she had attended on three occasions, but the Teacher did not mark her attendance. The Student in this case has not been certified by her education provider, as not achieving satisfactory course progress as specified; 8202(3)(a), and 8202(3)(b).   

17. It would appear from the information provided by the applicant to the Tribunal on the 1 November 2017; that the applicant did not act in response to an email from Ms Tracey from AAPOLY, who contacted the applicant to enquire on the 19 May 2017, if she was re-enrolling in the April intake.

18. The Tribunal takes the view that the applicant has not taken this opportunity to confirm or pursue this correspondence regarding her enrolment.  This was two months prior to her Grandmother’s passing on the 20 July 2017. The Tribunal has considered this in relation to the applicant’s claim she was suffering stress at the time of her Grandmother’s passing. The Tribunal is mindful of the significance of such an event, however in this case the lack of enrolment occurred prior to the Grandmother’s passing in July 2017, therefore the Tribunal gives no weight to this submission.

19. The Tribunal asked if the applicant had sought any counselling or discussed deferring with the University at any stage and she told the Tribunal that she had not.        

20. At the time of her cancellation of enrolment the applicant was studying Certificate iii in commercial cookery. Included in the information provided to the Department was a letter from Academies Australia Polytechnic dated 22 August 2017 notifying the applicant that her enrolment for Certificate ii in Commercial Cookery had been cancelled and the Department of Immigration and Border Protection had been notified.

21. The cancellation was as a result of the applicant not re-enrolling in July 2017 term and non-attendance.  The letter stated that subsequently the COE for the following courses have also been cancelled Certificate iv in Commercial Cookery, Diploma of Hospitality Management and Bachelor of Tourism and Hospitality Management.

22. On the 5 June 2016 the applicant was granted a student visa on the basis that they were enrolled on a course of study.  The visa holder’s enrolment was cancelled on the 25 July 2017 by AAPOLY in an email sent to the applicant stating “you are no longer considered a student of Academies Australasia Polytechnic”.

23. The applicant was notified of the Intention to consider cancellation on 17 October 2017 and the applicant’s visa was cancelled on 1 November 2017. The applicant responded to the Notice of Intention to Cancel Enrolment on the 1 Nov 2017, which details the circumstances around her cancellation of enrolment and as a result of discussions with AAPOLY.  The applicant submits that the school agreed to accept a re-enrolment in the November 2017 intake. This all transpired on the same day as the applicant’s visa was cancelled and so does not remedy the issue that the applicant remained unenrolled for three months at the time of cancellation, and it appears to the Tribunal that the applicant enrolled only in response to the notice of intention to cancel being issued by the Department.

24. The Tribunal accepts that she was not enrolled in a course of study prior to the enrolment being cancelled and has had disregard for the visa requirements. 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).

25. The Tribunal is therefore satisfied based on the reasons detailed above that the ground for cancellation in s.116(1)(b) of the Act exist.

    Consideration of the discretion to cancel the visa

26. 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.

27. The applicant did not provide prior to the Hearing a response to the Hearing Invitation to provide additional information, nor did the applicant provide additional information on the day of the hearing on 2 May 2019.

28. The Tribunal has read and considered the applicant’s submissions for the purpose of making this decision and although the applicant told the Tribunal that she had suffered stress as a result of her family and business issues she did not provide any evidence of the nature of the family and the business issues in any detail which she claimed caused her stress or information or discussion of treatment, assessment or any statement to collaborate her condition or the type of stress suffered, except that she found it difficult to focus on her studies.  On this basis, the Tribunal places no weight in favour of exercising the discretion to cancel in this circumstance.   

    The applicant’s purpose of travelling and staying in Australia

29. The applicant told the Tribunal that the purpose of the visa holder’s travel and stay in Australia was to study. In addition she explained to the Tribunal her hope and desire to continue to studies in Australia. The Tribunal accepts that the applicant wishes to stay and continue her studies in Australia.

30. Overall, the Tribunal does not consider these matters constitute a compelling need to remain in Australia. The Tribunal in consideration of this has formed the view that the applicant could study a similar course of this nature in her home country in considering the applicant’s purpose of travelling and staying in Australia, the Tribunal gives this no weight in favour of exercising discretion to cancel the visa.   

    Compliance with visa conditions

31. The applicant was not been enrolled in a registered course since 25 July 2017 until 17 October 2017 a period of three months.

32. Further the applicant has stayed in Australia without having complied with the conditions of her visa. In this case the applicant was not enrolled for a period of 3 months and the Tribunal considers this non-compliance is significant. The Tribunal in considering places significant weight in favour of the discretion to cancel in relation to non-enrolment.

33. There is no evidence of any other non- compliance by the applicant with Visa conditions. The Tribunal in considering this gives some weight against cancellation of the applicant’s visa and the Tribunal has given some weight in the applicant’s favour.

    Degree of Hardship

34. The applicant did not give evidence or raise matters of hardship, except that she would really like to continue with her studies. The applicant told the Tribunal that her parents would be disappointed, that they would not be directly affected but would be very sad. The Tribunal in considering this places no weight in this regard.

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

    The circumstances in which the grounds for cancellation arose

36. The applicant told the Tribunal that she had a family circumstance which upset her and caused her to be distracted from her studies. The Tribunal places some small weight for the applicant.

37. The applicant detailed in a written submission as part of her appeal letter to her university which was included in her file that there had been personal problems in her family around a family business which distracted her from her studies. There was no evidence submitted of a family violence, or relationship breakdown although states “Fortunately that the family issue is resolved now”. The Tribunal has placed some small weight for the applicant.

    The applicant also states in this submission to the College that her attendance on three occasions in class was not marked by the teacher. She also added that she found it hard to focus on her studies at this time. The applicant also states that she could have taken a leave of absence or communicated with her teachers. The Tribunal accepts that it is possible that there may have been an error in marking attendance, but this does not explain continued non-attendance and lack of communication with the College if there were other issues.

38. On balance the Tribunal gives weight in favour in exercising discretion to cancel. Whilst it is plausible that the applicant was distracted by issues relating to her family, the responsibility sits with the applicant to ensure that she meets the requirements of the visa which was to maintain enrolment and to attend a course of study. The applicant was advised in the letter that this may affect her student visa and she was strongly advised to contact the Department of Immigration and Border Protection.

    Past and present behaviour of the visa holder towards the department

39. The applicant was polite during the hearing and responded to the Notice of Intention to Consider Cancellation and therefore the Tribunal has given this some weight.

    Whether there would be consequential cancellations under s.140

40. As there is no other person that currently holds a visa as a result of the applicant holding a Visa as this is a Student Visa, there will be no automatic consequential cancellation by operation of law under s.140 if the applicant has their visa cancelled.

    Legal consequences 

41. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189 and s.198. The applicant would need to seek advice pertaining to her immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion.

42. Accordingly the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

    Whether any international obligations would be breached as a result of the cancellation

43. There is no evidence before the Tribunal that any International obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

44. The applicant in her submission at the hearing was for the most part uncommunicative and did not give detailed answers often answering yes or no, she also states in a written submission to her University that she is introverted by nature.  The applicant also admitted during the hearing that she had attended only three classes which she was not marked as attending and the College had said she did not attend any of her classes, which the applicant said was an error. Whilst the applicant may have obtained a conditional offer of enrolment she has not provided evidence of the acceptance of this offer; nor is there any evidence of a current COE.  The Tribunal places neutral weight against the applicant’s attendance and conditional offer of enrolment because of lack of conclusive evidence provided to the Tribunal. 

45. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

46. 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.