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

1. 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).

2. 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.

3. 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.

4. The applicant provided a copy of the decision record to the Tribunal.

5. 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.

6. 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.

7. The applicant was represented in relation to the review by his registered migration agent.

8. 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

9. 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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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;

16. The Department sent a NOICC to the applicant on 12 July 2017. The applicant responded to the NOICC on 24 July 2017, 30 July 2017 and 4 August 2017. In this response the applicant provided reasons why the visa should not be cancelled. Those reasons related to the applicant advising that he though as long as he was studying at a college it was ok. He provided copies of Confirmation of Enrolments (COE’s) and offers of enrolment in a Diploma of Leadership and Management and offers of enrolment in an Advanced Diploma of Business. The delegate noted these courses were in the VET sector and not the HE sector as required by a condition attached to his visa. His enrolment in a Bachelor degree was cancelled 30 August 2016. The delegate made a finding that the applicant in enrolling in courses in the VET sector showed an intention not to study in the HE sector. The delegate advised the applicant had extensive time to rectify this mistake but did not do so. The delegate gave this consideration little weight in favour of the applicant.

17. Accordingly the applicant did not meet the requirements of condition 8516 and there was a ground for cancellation of the applicant’s visa under paragraph 116(1)(b) breach of condition 8516 of the Act.

18. 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

19. 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

20. 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

21. 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)

22. The applicant did not provide any information to the Tribunal that addressed hardship.

23. 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.

24. 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.

25. 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.

26. 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.

27. The applicant will not be subject to PIC 4013.

    Circumstances in which ground of cancellation arose

28. Based on the evidence available before the Tribunal the applicant did not hold enrolment in a course at the higher education sector level after 30 August 2016. Therefore the applicant has not complied with condition 8516 at relevant times.

29. In response to a NOICC the applicant provided relevant supporting documentation relating to an English course certificate, receipts for payment of rent and tuition fees, COE dated 7 June 2017 for a Diploma of Leadership and copies of letters of offer in relation to an Advanced Diploma of Business dated 28 July 2017.

30. The applicant thought it was sufficient that he was studying in the VET sector.

31. The Tribunal has considered the above information and acknowledges that the applicant was studying at the time of the delegate’s decision. However at this time he still remained not enrolled in a course required for a TU 573 visa holder. The Tribunal acknowledges that he has a letter of offer for an Advanced Diploma of Business. The relevant COE was not issued at the time of the delegate’s decision. Even if the applicant had provided proof of acceptance of this offer and provided a COE the course is still only a VET sector course. The applicant needed to be enrolled in a Bachelor’s or Master’s degree course to satisfy his 573 visa. The Tribunal therefore give this consideration little weight in his favour.

32. The applicant’s enrolment in a bachelor’s degree or master’s degree course that he provided when he applied for his subclass 573 student visa was cancelled on 30 August 2016. By enrolling in and making an application to study at the vocational education and training sector level, it would appear that his intention is not to study a higher education sector level course in Australia, as required by his current student visa. At the time of the delegate’s decision it had been over eleven (11) months since the applicant held enrolment at the correct level for a TU 573 visa holder. The applicant had significant time to rectify his status and has failed to do so. The Tribunal therefore give little weight to this consideration in his favour.

33. There is no other information before the Tribunal regarding the circumstances under which the cancellation grounds arose that provide a reason not to cancel his visa.

    Past and present behaviour of the visa holder towards the department

34. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach  The Tribunal notes the applicant did not respond to the invitation to attend a hearing on 24 September 2019 and did not provide a reason for his non-attendance at the scheduled hearing.

    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

35. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

36. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

37. There is nothing before the Tribunal to indicate there are international obligations to consider.

38. Any other relevant matters

39. The applicant has not brought to the attention of the Tribunal any other relevant matters.

40. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-573 visa  and that a breach in excess of 12 months is significant in the context of a student’s study period

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

    DECISION

42. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mark Bishop
    Member