Nguyen (Migration) - [2019] AATA 4315

Nguyen (Migration) [2019] AATA 4315 (24 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Xuan Thinh Nguyen
CASE NUMBER:  1719624
HOME AFFAIRS REFERENCE(S):           BCC2017/2475276
MEMBER:Mark Bishop
DATE:24 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 24 September 2019 at 2:33pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – did not attend hearing – not enrolled in HE course – enrolled in VET course – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B, 379A(4)
Migration Regulations 1994 (Cth), cl 573.231, Condition 8516

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 22 August 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 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was no longer enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas. 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 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant provided a copy of the decision record to the Tribunal.
On 3 September 2019 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 24 September 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
No response to the hearing invitation was received. However the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The applicant was represented in relation to the review by…

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) [2019] AATA 4315
Case: [2019] AATA 4315
Decision Date: 24 September 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 Higher Education Sector visa was cancelled. The dispute arose because the applicant was not enrolled in a registered course within the higher education sector, a condition of their visa, and had not attended a hearing concerning the cancellation. The Tribunal was tasked with determining whether the cancellation decision should be affirmed.

The legal issues before the Tribunal included whether the applicant had failed to comply with a condition of their visa, specifically condition 8516, which requires a visa holder to continue to satisfy the primary or secondary criteria for the grant of their visa. This condition, in the context of a Subclass 573 visa, necessitates maintaining enrolment in a principal course of study within the higher education sector, as defined by relevant legislative instruments. The Tribunal also had to consider whether, having found a ground for cancellation, the discretion to cancel the visa should be exercised.

The Tribunal reasoned that the applicant had breached condition 8516 because records indicated they were no longer enrolled in a Bachelor of Information Technology or any other course of study specified for the higher education sector since August 2016. While the applicant had attempted to enrol in a Vocational Education and Training (VET) sector course, the Tribunal found this did not satisfy the requirements for their Subclass 573 visa. The Tribunal acknowledged this attempt but considered the breach of the visa condition significant, particularly given its duration of 11 months at the time of the delegate's decision. Although the applicant did not provide specific details of hardship, the Tribunal noted that potential hardship was outweighed by the breach of visa conditions.

Ultimately, the Tribunal concluded that the ground for cancellation under s 116(1)(b) of the Migration Act 1958 was established. Exercising its discretion, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector 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 affirmed. 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). 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?s.116(1)(b) - non-compliance with conditions A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 was attached to the applicant’s visa. This condition requires a visa holder continue to satisfy the primary or secondary criteria for the grant of a visa. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 12/037. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037. The delegate made the following findings:·According to PRISMS the visa holder was no longer enrolled in a Bachelor of Information technology on 30 August 2016 and has not held enrolment in a course of study specified for the higher education sector (sub class 573) visa since that date;·According to PRISMS the visa holder was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister made under the relevant instrument;·The visa holder no longer satisfied either subclauses 573.231 or 573.223(1A) and had not complied with condition 8516;

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Mark BishopMember

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1) 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 to study in the HE sector. The applicant provided a detailed response and attached supporting relevant documentation to the Department to the NOICC. The applicant has sought to study in the VET sector not the HE sector after his enrolment in a registered course in the HE sector was cancelled by the education provider. He explained in his response to the NOICC that he was of the view enrolment in the VET sector was sufficient. At the time of the delegate’s decision on 22 August 2017 the applicant had been in breach of condition 8516 for 11 months by continuing non-enrolment in the HE sector. The Tribunal acknowledges the applicant attempted to enrol in the VET sector and gives this attempt some little consideration in his favour. It does not, however, outweigh the significance of a breach of a condition attached to a student visa.The extent of compliance with visa conditions There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.Degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant did not provide any information to the Tribunal that addressed hardship. In his NOICC response the applicant did not state any specific hardship that might be caused to him as a result of the cancellation of his student visa. Whilst the Tribunal acknowledges that some hardship may be caused to the applicant should he be required to depart Australia the Tribunal notes that he will be eligible to apply for a bridging visa E which may allow him to remain lawfully in Australia so that he can finalise any outstanding matters. If the visa is cancelled the applicant will become an unlawful non-citizen and be may liable for detention under Section 189 and removal under Section 198 of the Migration Act 1958 if he continues to remain an unlawful non-citizen by not resolving his status. Additionally the applicant will be subject to Section 48 of the Act which means that he will have limited options to apply for further visas in Australia.