NGUYEN (Migration)

[2019] AATA 5499

NGUYEN (Migration) [2019] AATA 5499 (22 August 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MINH DUC NGUYEN

CASE NUMBER:  1813063

HOME AFFAIRS REFERENCE(S):          BCC2018/168300

MEMBER:Donna Petrovich

DATE:22 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 22 August 2019 at 9:32am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – family medical treatment in Vietnam – enrolment cancelled for non-attendance – applicant maintained employment despite claimed depression – 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 30 April 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).

2.    The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course for over 9 months and  no longer meets the requirements of subclause 8202(2)(a). 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 July 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.    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

5. 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?

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

7.    be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

8.    has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

9.    has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

10.  In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant did not dispute that there was a grounds for cancellation.

11.  On the evidence before the Tribunal, the applicant was not enrolled in a registered course between the above dates, nor is there evidence he was enrolled in a full time course of study or training. Accordingly, the applicant has not complied with condition 8202(2)

Does the grounds for cancelation exist?

12.  The applicant was granted Student (Temporary) (class TU) Higher Education Sector (subclass 573) Visa on the 4 June 2014. The applicant commenced study in Melbourne initially after completing his first year his results were not satisfactory, he did not pass and told the Tribunal that  he found the course too difficult.  The applicant then moved to Sydney as he had friends there who told him it was easier in Sydney; where he undertook a Certificate in Business Management. The applicant could not tell the Tribunal who the provider was but made submissions that he attended a couple of days per week and was achieving good results. The applicant submitted that his parents had health issues, which the applicant provided medical records to verify this.  His mother developed a Thyroid condition and his father was being treated for Varicose veins.

13.  The applicant told the Tribunal that both required hospitalisation on separate occasions during this period. It appears from the information provided by the applicant that his father was in hospital for treatment of Varicose veins on 25 July 2018. His mother has several ultrasound results 10 May, 01 June 2017, 27 June 2017, 14 September 2017 the Tribunal was provided Thyroid Gland Ultrasound certificates to that effect.  The applicant told the Tribunal he was distressed that his parents were in hospital and he was worried about them. The applicant himself became unwell with a swollen foot and lower leg which he asserts further prevented him from attending his course.

14.  The applicant ceased to be enrolled in a registered course since 5 July 2017, and remained unenrolled for a period of 9 months.  The applicant was advised by Notice of intention to consider cancellation on the 22 March 2018, which he did not respond to. The applicant did not contact the department in relation to the Notice of intention to consider cancellation, nor did he seek a deferment from his education provider.  The applicant did not seek treatment for his swollen foot and ankle which he said was not as a result of an injury, but may have been from standing whilst commuting to his course on public transport. His injury persisted for approximately twenty days and he treated this by resting on the advice of his housemates:

15.   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).

Consideration of the discretion to cancel the visa

16.  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’

17.  The applicant provided the Tribunal with medical reports in relation to his parent’s illness at the hearing on the 24 July 2019.  The Tribunal has read and had consideration to the applicant’s submissions for the purposes of making this decision.

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   

18.  When asked about the purpose of his stay in Australia the applicant submitted that the purpose of the visa holder’s travel and stay in Australia was to complete his education. When asked about his choice of study in the future the applicant submitted that he would like to continue to study in Australia. He would now like to pursue a Trade qualification in carpentry because this is the easiest course to finish.

19.  When questioned on the type of work he would do on return to Vietnam he stated that he would be able to introduce timber framing for housing as currently construction methods are solid brick or steel frame. When asked about the reason for steel framing he replied it was used because of ants and humidity. The Tribunal asked then whether timber frames would be suitable and he stated not really and he would probably just focus on installation of timber flooring.  In the Tribunals view this is not a compelling need to stay in Australia as the applicant has already trained and worked in timber floor installation and would already have sufficient skills to continue this work in Vietnam. The Tribunal places no weight in the applicants favour in this regard and is of the view that the applicant did not meet the requirements of compliance with visa conditions.

20.  The applicant whilst he expressed to the Tribunal that he had suffered a degree of depression caused by the illness of his parents. The applicant could show no medical evidence in relation to a diagnosis, and he told the tribunal that whilst he had been to a GP had no medical certificate or proof of diagnosis. The Tribunal has considered this and finds that whilst the applicant may have been suffering at the time there is no medical evidence or other evidence to support this, and therefore, places no weight on this submission. Whilst the Tribunal accepts that the applicant would experience some depression about having both parents unwell intermittently and being away from them; it does not accept that it would have prevented him from studying, attending college or making alternative arrangements with the department to avoid being in breach of his visa condition. As there are no documents to verify the applicant’s submission regarding his own ill health and on this basis the Tribunal places little weight on this submission.

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

21.  The Tribunal heard that the applicant was upset at the prospect of returning home to Vietnam without having achieved anything. The applicant stated in relation to his parents that it would be a shock to them.  The Tribunal accepts there may be some emotional impact for the applicant and his family and some hardship However, there was no evidence submitted in relation to financial or psychological impact and the Tribunal therefore places some small weight in the applicants favour in this regard.

The Circumstances in which ground for cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that are 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.  

22.  The circumstances in which the grounds for cancellation arose which were the result of the applicant not attending his course for a period of 20 days when he says he had lost motivation and was depressed over his parent’s illness. In relation to the timeframe around the illness which led to him not being enrolled for 9 months between 5 July 2017 and 22 March 2018. His mother was ill according to Medical Certificates between May and September 2017. His father provided a certificate for 25 July 2018. The applicant stated he became worried because they were ill and he was not able to visit. When asked why he did not return to Vietnam to see his parents at this time he told the Tribunal that his parents had reassured him that there was nothing he could do and to stay in Australia. Whilst the Tribunal does not undermine the concern that the applicant had for his parents, it does not place significant weight in the applicants favour in this regard and the Tribunal does not accept that these matters were beyond the applicant’s control.

23.  During the time his parents were ill the applicant told the Tribunal that he worked in Construction for 6 to 8 months to support himself which seems to be the period that he allowed his enrolment to lapse. This evidence seems to contradict previous evidence of the applicants own illness and makes it difficult for the Tribunal to find in favour of the applicant. The Tribunal places little weight in the applicants favour in this regard. 

24.  The applicant also suffered an undiagnosed swelling of his foot and lower leg at this time, which he says prevented him from attending class.  He submitted that his enrolment was cancelled because of his non- attendance, being behind in 3 or 4 assignments and missing his examinations. The applicant contacted the provider who told him that it was too late and he would have to re-enrol.  He then submitted that when he tried to re-enrol the provider would not allow him to do so.

25.  During the course of the hearing the applicant also told the Tribunal that during the period that his parents were ill he supported himself by working as a house framer constructing pre-framed trusses and timber house frames. The applicant worked for an older acquaintance named Tuan who trained him and paid him cash. He could not recall the name of the Builders he worked for he worked in this capacity for 6-8 months approximately 20 hours per week. The Tribunal is perplexed by the timelines provided by the applicant and how they relate to the period where the applicant submits he was unable to attend class due to his own illness. The tribunal is unable to make a determination due to the vague and unconvincing nature of the evidence in relation to this issue and therefore places no weight in favour of the applicant in relation to this evidence.  

Past and present behaviour of the applicant toward the department

26.  The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight in favour of the applicant is given in consideration of this factor.

If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder-mitigating, compassionate and compelling factors

Whether there would be consequential cancellations under s.140 

27.  There are no issues in relation to be consequential cancellations under s.140

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

28.  On the evidence before me including his statement at hearing, there is nothing to conclude that Australia’s protection obligations would be engaged and I give this no weight in the applicant’s favour, There are no issues in regard to 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, as in his case the applicant is a single male with no children.

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

Other relevant factors

30.  Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.

31.  Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

32.  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:

the holder is enrolled in a registered course; or

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:

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

(ii)         standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

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

(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.