Nguyen (Migration)

[2019] AATA 6003

Nguyen (Migration) [2019] AATA 6003 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hoang Anh Nguyen

CASE NUMBER:  1820735

HOME AFFAIRS REFERENCE(S):          BCC2018/1059330

MEMBER:Michael Biviano

DATE:13 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 13 September 2019 at 3:12pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 – Master of Professional Accounting – not enrolled in registered course for ten months – non-payment of fees – ceased attending classes – enrolment cancelled – multiple course enrolments – did not take steps to re-enrol – CPA program not registered course – failed multiple subjects – death in family – long history in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 July 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that he had not been enrolled in a registered course of study from 30 August 2017 and he was not compliant with condition 8202 of the visa. The delegate went on to consider the factors in favour of cancellation outweighed those against cancellation. 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 29 May 2019 to give evidence and present arguments.

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

5. It is appropriate to highlight that the decision-maker is not required to make the applicant’s case, it is for the applicant to satisfy the Tribunal that the requirements of the Act and the Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicants in as much detail as is necessary to enable the examiner to establish the relevant facts.

6. 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

7. 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?

8. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·must be enrolled in a full-time registered course: 8202(2)(a)

   ·must maintain enrolment in a registered course that once completed will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course of study since 30 August 2017.

10. The decision record of the delegate of the Department of Home Affairs dated 10 July 2018, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 17 January 2017 (Decision Record).

11. The Decision Record confirms that the applicant had arrived in Australia on 13 March 2009, after obtaining an initial Student (Subclass 573) visa which had been granted on 3 February 2009 to study a suite of foundation courses including English DUELI and foundation year 12 at Melbourne Institute of Business Technology (MIBT). The applicant has since stayed in Australia on two further TU 573 student visas granted on 9 September 2013 and 4 May 2015 and a subclass TU 500 visa granted on 17 January 2017.

12. In 2010 and 2011, the Applicant then studied a Diploma of Business at MIBT which he obtained after one and a half years.

13. In or about 2012 he commenced studying a Bachelor of Commerce which took 3 years to complete. He gave evidence that he failed a number of subjects but completed the degree in or about 2015.

14. At the end of 2015, he commenced a Master of Commerce at Deakin University. He failed all subjects in the first semester. He then studied the second semester in early 2016, and paid for the second semester but ceased studies and did not attend classes at the university because he was struggling. He ceased participating at the conclusion of semester 1 in 2016 and expected that his course would be cancelled.

15. In early 2017 he enrolled and commenced the first semester of a Master of Professional Accounting at Holmes Institute. He gave evidence that the master’s course was 16 subjects but in May 2017 he failed all three subjects that he was studying in the first semester.

16. In 2017 the applicant decided to undertake full-time study in Certified Public Accountant (CPA) program in early 2017 alongside his master’s degree course. The CPA program is administered by CPA Australia Limited. The applicant presented a letter from CPA Australia Limited confirming that they had received the application on 21 March 2017 and they had assessed his competency based on his bachelor’s degree at Deakin University and found that he had completed 4 of the 9 competencies to obtain the CPA qualification. He needed to study and complete 5 further competencies.

17. The applicant spent most of his time pursuing the CPA program and made three attempts to clear the exam for the Fundamentals of Business Law on 27 June 2017, 3 August 2017 and 19 September 2017. The applicant passed the final exam in September 2017. He undertook the subject of Management Accounting as part of the CPA program and he sat the exam in October 2018 and failed.

18. Also during that time, the applicant gave evidence that due to unbearable study load, he sought to defer his Master of Professional Accounting. The applicant claimed the deferral was approved by Holmes Institute on 11 September 2017.

19. However the applicant when questioned about whether his studies had been deferred gave evidence that in mid-2017, his grandfather, with whom he was close, was paralysed and as he was his only grandson, he tried to return home. He claimed that he applied to defer the master’s course in July 2017 at Holmes Institute and he was required to provide medical evidence and make payment of his tuition fees for the period of the deferment. He confirmed that he did not pay the tuition fees. The applicant received an email from David Mustafa, the Campus Director Melbourne at Holmes Institute, on 11 September 2017 confirming that a revised letter of offer had been sent to him as part of the deferral process and he needed to respond to this offer by accepting the offer and making payment for the revised CoE and communicate with the Immigration Department. However the applicant gave evidence due to his short-term financial problems, he did not pay the tuition fees and he did not accept the offer for the deferral of studies.

20. Two months later, his grandfather passed away and he had not visited his grandfather because he had not deferred.

21. The applicant gave evidence that he did not participate in studying at Holmes Institute in the second semester for 2017 and he did not pay the tuition fees for the second semester or the deferment. In light of the evidence the logical consequences of the applicant’s actions were that his enrolment in the course would have been cancelled.

22. He conceded in evidence that as he had not paid the tuition fees, he had not deferred and he was not studying, he accepted that his enrolment at Holmes Institute ceased. He claims that Holmes Institute did not inform him that he was no longer enrolled in the course until he received an email in late 2017 or early 2018, that he was not enrolled in the Master of Professional Accounting.

23. The applicant gave evidence that despite being informed that he was not enrolled in the Master of Professional Accounting, he did not take any further steps to re-enrol. Instead he decided to continue studying the CPA program. The applicant when questioned about whether he knew that the CPA program was not a registered course for the purpose of the Act, said he did not know and he was unsure. He claimed that he had spoken to students who had completed the course and some had told him that it was a registered course and others told him it was not. The applicant did not seek clarification from the Department or a registered migration agent.

24. Instead the applicant chose to take a risk and study the CPA program alone on a full-time basis and he ceased studying the Master of Professional Accounting and he took no steps to re-enrol. In October 2018 after receiving the poor examination result he decided not to continue studying the CPA program as he thought it was too hard and only getting harder.

25. The applicant received the Department’s notice of intention to consider cancellation dated 4 June 2018 for breach of visa condition 8202, and the applicant responded in writing to the Department.

26. Visa condition 8202 attached to the applicant’s student visa states the holder must be enrolled in a full-time registered course. The definition of a registered course as per the Act is:

    registered course means a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

    Note: A current list of registered courses appears in the Commonwealth Register of Institutions and Courses for Overseas Students kept under section 10 of the Education Services for Overseas Students Act 2000.

27. Information relating to requirements for international students in regards to registered courses is publicly available information via the Department’s website. It is noted that while the CPA program is a recognised qualification for accountants, it is not a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course. This is confirmed via a search conducted on the CRICOS website at Therefore, it is not a registered course for international students, which is why a confirmation of enrolment is not issued for it.

28. Visa holders are responsible for being aware of the visa conditions that apply to their visa and knowing what their visa conditions mean. The applicant as a visa holder is obliged to comply with his visa conditions during his prescribed period of stay and be aware of the consequences of not complying with his visa conditions.

29. Based upon the applicant’s long history in Australia and the information available to him he ought to have been aware that he was in breach of the visa condition 8202 in studying the CPA program alone – which had no Confirmation of Enrolment Certificate.

30. The applicant claims that he now knows that the CPA program was not a registered course and he was not enrolled by merely being enrolled in the CPA program.

31. The Decision Record confirmed in relation to the cancellation of the enrolment of the course that:

    However, I note PRISMS indicates Holmes Institute cancelled the visa holder’s enrolment for the Master of Professional Accounting on 30 August 2017 and provided the reason as ‘Student Notifies Cessation of Studies’ with the comments ‘did not re-enrol in the compulsory study period.’

32. The Tribunal questioned the applicant who agreed the cancellation of enrolment at Holmes Institute ceased at that time. He agreed it was possible that he was no longer enrolled as at 30 August 2017 but accepts he was definitely not enrolled in a registered course at the end of 2017. However he did not provide evidence which contested the fact that he was not enrolled in a registered course after 30 August 2017 until the visa cancellation on 10 July 2018.

33. Having considered the Decision Record and the applicant’s evidence that he did not pay tuition fees for the second semester, he did not attend studies in the second semester and he did not defer his studies the Tribunal finds that the applicant’s enrolment in the Master of Professional Accounting ceased on 30 August 2017 and he was not enrolled in a registered course of study from up until his visa was cancelled on 10 July 2018.

34. On the evidence before the Tribunal, it finds the applicant was not enrolled in a registered course between 30 August 2017 and 10 July 2018. Accordingly, the applicant has not complied with condition 8202(2). As this was a condition which attached to his visa, the applicant has therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

35. 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’.

    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

36. The applicant gave evidence that he came to Australia to study and undertake a suite of courses including foundation courses in English, the Diploma of Business, and the Bachelor of Commerce. As discussed above he attempted to unsuccessfully study two master’s degrees. Even when he was not enrolled in a registered course of study he was studying the CPA program.

37. The applicant’s visa was cancelled because he ceased studying the Master of Professional Accounting, which was a registered course and his enrolment in that course ceased on 30 August 2017 and he was studying the CPA program which was not a registered course as discussed above.

38. The applicant gave evidence that in or about late July 2018 or early August 2018, he commenced studying a Diploma of Leadership and Management at St Adam’s College. On 24 May 2019 the applicant obtained the Diploma of Leadership and Management from St Adam’s College.

39. On the evidence before the Tribunal, the applicant has been in Australia since March 2009, being 10 years and 6 months and he has completed two diplomas, one bachelor’s degree and unsuccessfully attempted two master’s degrees and the CPA program.

40. The applicant has given evidence that if possible he intends to remain in Australia and undertake further study. He is currently enrolled in and studying the Advanced Diploma of Leadership and Management at Melbourne Institute of Education which is scheduled to be completed in July 2020. The applicant provided evidence of the offer and his acceptance of such course. The applicant gave evidence that if the cancellation of his visa was set aside he would like to complete the advanced diploma and then complete a master’s degree and obtain a good job in Australia or back home.

41. Having regard to the applicant’s evidence, the Tribunal accepts that the applicant has travelled to Australia intending to study and he has studied and intends studying in Australia in the future, and given his conduct in Australia as set out above, the Tribunal gives this factor some weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

42. The applicant was not enrolled in a course of study from 30 August 2017 until the cancellation of the visa on 10 July 2018 being a period of 10 months and 10 days which is a substantial period of time. Therefore, the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for such a substantial duration of time may weigh towards the cancelling the visa unless the Tribunal accepts his reasons for non-enrolment.

43. The applicant in evidence gave a number of reasons why he was not enrolled and those reasons are set out above. The Tribunal does not find them compelling and not convincing reasons as to why he was not enrolled in a registered course of study.

44. The applicant knew and was aware that by not paying his tuition fees and not attending the classes and participating in classes, his enrolment in the Master of Professional Accounting at Holmes Institute would be cancelled. The Tribunal finds that the applicant was aware as at 30 August 2017, that either the course was cancelled or likely to be cancelled imminently because of his conduct. The applicant confirmed that he received notice later in the year that his enrolment in the course had been cancelled. The applicant having been given notice, gave evidence that he did nothing in relation to being re-enrolled. He did not seek advice from the Department, his education provider, an education consultant or migration agent. He merely decided to continue studying the CPA program.

45. The applicant in evidence claimed at the time that he was unsure whether the CPA program was a registered course. Remarkably, he has been in Australia since 2009 studying, and aware that obtaining a Confirmation of Enrolment Certificate is an extremely important requirement in retaining a visa, and notwithstanding his uncertain state as to whether he was enrolled in a registered course for the purpose of the visa, he did not seek advice from the Department or professional adviser but instead took a risk studying the CPA program.

46. The Tribunal finds that the applicant was responsible for not being enrolled and the substantial period of non-enrolment. During the period of non-enrolment the applicant studied the CPA program. By reason of the duration of the breach and the applicant’s responsibility for the breach the Tribunal gives this some weight towards the visa being cancelled.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

47. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled. The applicant gave evidence that the visa cancellation would cause him some degree of hardship as:

    a.His parents would be disappointed with him;

    b.He had missed his grandfather’s funeral because of his studies not being deferred;

    c.It would be hard for him to obtain a job without first obtaining work experience in Australia.

48. The Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters which would constitute a degree of hardship sufficient to weigh against cancelling the visa.

49. The Tribunal considers that the above matters give little weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose. 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

50. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

51. Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment.

52. The applicant knew and was aware that by not paying his tuition fees and not attending the classes and participating in classes, his enrolment in the Master of Professional Accounting at Holmes Institute would be cancelled. The applicant was subsequently notified by the education provider and he took no steps to remedy that non-enrolment.

1. Further the applicant even on his own evidence was unsure whether enrolment in the CPA program constituted enrolment in a registered course for the purpose of his visa, and he took no steps to verify that. The applicant chose to continue on with his studies without making any simple enquiries with the Department. Based on the operation of the visa conditions, the applicant if he had made relatively simple enquiries on the Department’s website, would have discovered that the CPA program was not a CRICOS registered course and that he was in breach of condition 8202 by studying the CPA program alone. Further the applicant would have also been made aware that it was not a CRICOS course because he did not receive a Confirmation of Enrolment Certificate for the CPA program.

2. The primary purpose of the applicant under the visa is to undertake a CRICOS course at a level appropriate to his visa and the applicant was not enrolled for the 10-month 10-day period which is a substantial period to be in breach of the visa.

3. The Tribunal has considered the applicant’s explanations for why he was not enrolled for this substantial period and therefore in breach of condition 8202(2). The Tribunal does not accept the circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time. The Tribunal gives this matter very substantial weight towards the visa being cancelled.

   Past and present behaviour of the visa holder towards the Department

4. According to the Decision Record, the applicant had responded to the Department’s notice of intention to consider the cancellation of the visa. Further there was no other evidence that the applicant had been uncooperative towards the Department. The Decision Record of the Department confirmed there is no adverse information before the Department on this matter. The Tribunal gives this factor little weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

5. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

   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

6. If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further pursuant to s.48 of the Act the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of further visa applications.

7. Further, if the Tribunal decides to affirm the decision to cancel the TU500 student visa under these grounds this will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013, so it will prevent him from being able to apply for a new visa from overseas if he has to depart Australia.

8. However these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.

9. The applicant gave evidence that if the visa remained cancelled he would return to Vietnam and therefore there is no indication that he would become unlawful or be subject to detention.

10. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.

    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

11. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to Vietnam and he did not give any reasons as to why he could not return to Vietnam and he has not made any claims that relate to this consideration. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.

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

12. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

    Any other relevant matters

13. The Tribunal is not aware of any other relevant matter in relation to the decision whether the visa ought to be cancelled.

    Conclusion

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

    DECISION

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

    Michael Biviano
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1) The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)a Foreign Affairs student; or

    (c)a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)must be enrolled in a full time registered course; and

    (b)subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)  is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b) changes their enrolment to a course at the Australian Qualifications Framework level 9.