Nguyen (Migration)

[2019] AATA 3668

Nguyen (Migration) [2019] AATA 3668 (18 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tan Tien Nguyen

CASE NUMBER:  1901694

HOME AFFAIRS REFERENCE(S):           BCC2017/4047784

MEMBER:David Thompson

DATE:18 August 2019

PLACE OF DECISION:  Perth

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

Statement made on 18 August 2019 at 10:47pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – course enrolment – non commencement of studies – enrolment cancelled – applicant’s explanation unconvincing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 362B
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 23 January 2019 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, whilst the applicant had maintained enrolment in registered courses, he had not maintained his enrolment in a registered course that, once completed, would provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. 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 was represented in relation to the review by his registered migration agent.

4. The applicant was invited by letter dated 6 June 2019 to appear before the Tribunal for a hearing on 26 June 2019, but stated in his response to hearing invitation received by the Tribunal on 25 June 2019 that neither he nor his registered migration agent would take part in the hearing. By the same communication, the applicant’s registered migration agent lodged written submissions on his behalf. The applicant did not request an adjournment of the hearing,

5. Neither the applicant nor his registered migration agent appeared before the Tribunal on 26 June 2019. Consequently, s.362B(1) of the Act is engaged. In view of the fact that it has received written submissions, the Tribunal has decided pursuant to s.362B(1A) of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

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.

   Evidence

8. As the applicant chose not to attend at the scheduled hearing of his application, the evidence before the Tribunal on which it may decide this review application is limited. It consists of:

   a.information contained in the delegate’s decision record and notice of decision, which the applicant provided to the Tribunal when he lodged his review application; and

   b.the applicant’s written submissions, referred to above.

   The Tribunal has reviewed the Department’s file in this matter, but it contains no evidence or information beyond that contained in those documents.

9. It is clear reading the applicant’s written submissions that they were prepared for him by his registered migration agent. The Tribunal is prepared to accept that the applicant’s migration agent has conveyed to the Tribunal matters of which the applicant himself would wish the Tribunal to be aware. However, the applicant’s written submissions are not sworn or affirmed evidence, but rather are in the nature of advocacy. That is not to criticise the applicant’s migration agent. Although the Tribunal is prepared to consider the claims as to matters of fact made in those submissions as evidence, it cannot give them the weight that might be given to sworn or affirmed evidence.

   Did the applicant comply with Condition 8202?

10. 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 full-time registered course: 8202(2)(a);

    ·maintain enrolment in a registered course that, once completed, will provide a qualification from the AQF 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)(i), and

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

11. In the present case, the applicant’s visa was cancelled on the basis the applicant had not maintained enrolment in a registered course that, once completed, would provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

12. According to the delegate’s decision record (which in turn relied on evidence obtained from the applicant’s record in the Provider Registration and International Student Management System (PRISMS)), the applicant:

    a.was granted a Student (subclass TU-500) visa on 3 February 2017 in order to study for the degree of Bachelor of Business at Edith Cowan University;

    b.had his Bachelor of Business enrolment cancelled by his education provider on 14 March 2017 due to non-commencement of studies; and

    c.obtained an approved enrolment on 23 November 2018 in a packaged course consisting of Certificates III and IV in Commercial Cookery and Diploma of Hospitality Management with Stanley International College Pty Ltd.

13. The applicant has not contradicted any of these statements of fact in his written submissions. Indeed, in stating that he enrolled at Stanley International College and that he maintained his study in Australia until his visa was cancelled, the applicant’s written submissions offer some confirmation of them.

14. The highest level of enrolment the applicant maintained after 14 March 2017 was, on the evidence, his Diploma of Hospitality Management Enrolment. That qualification has an AQF level of 5, as opposed to the applicant’s enrolment for a Bachelor of Business which has an AQF level of 7.

15. On the evidence before the Tribunal, the applicant did not maintain enrolment in a registered course that, once completed, will provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. Accordingly, the applicant has not complied with condition 8202(2)(b).

    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.’

    The purpose of the applicant’s travel to and stay in Australia

17. There is no indication in the evidence before the Tribunal that the applicant came to Australia with any purpose other than to study. The delegate took the view that the applicant’s purpose was to study for a Bachelor of Business degree, and that he abandoned that purpose when he failed to commence those studies. The applicant’s written outline of submissions states that when the applicant enrolled in his studies at Stanley International College he was told by the College’s representatives that the course for which he enrolled provided a pathway to Bachelor’s level study, and that the College would place him in a Bachelor’s degree course provided he finished the vocational course in which he was enrolling. The applicant written submissions further state that he enrolled with Stanley College in reliance on this assurance.

18. There is no independent evidence of the assurances made to the applicant by Stanley College. However, in the nature of the case it is likely that such independent evidence would be difficult, if not impossible, to obtain. In light of the applicant’s explanation, the Tribunal is not prepared to find that the applicant abandoned his intention to complete a Bachelor’s level course at any stage.

19. The Tribunal gives this factor a little weight in the applicant’s favour, as a reason to refrain from exercising the discretion to cancel.

    The extent of compliance with visa conditions

20. The applicant was in breach of his visa condition from 14 March 2017 to the date of cancellation of his visa, that is, 23 January 2019. That is a period of just a little over 1 year and 10 months. This is a substantial breach, and in itself would weigh heavily against the applicant.

21. However, the delegate’s decision record states that the applicant attempted to regularise his position by applying for a visa appropriate for his vocational education enrolment on 28 September 2018. Although that application was refused on 15 January 2019, it was made before the Department sent the applicant its notice of intention to consider cancellation (NOICC) on 3 January 2019. The visa that the applicant then held (that is, the visa cancellation of which is the subject of this review) was valid until 15 March 2019. This timing indicates that the applicant did not attempt to regularise his position merely because he was aware that the Department was considering taking action.

22. This circumstance lessens to some extent the weight that would otherwise be given to this factor against the applicant. However, the applicant’s breach remains a serious breach, and continues to weigh very significantly against the applicant.

    Circumstances in which the ground for cancellation arose

23. The applicant’s written outline of submissions provides an explanation for the circumstances in which the ground of cancellation arose. That explanation has two parts.

24. The first part of the applicant’s explanation is, in summary, that the he was suffering from major depression and anxiety from at least the end of 2016 due to the breakdown of his marriage following what is described in the applicant’s written submission as a period during which the applicant “was subject to abuse by his wife as he was exposed to her sadistic behaviour by which she tried to enslave him by abusing him that she will split up with him.” The submissions also allude to the applicant having suffered physical abuse during his marriage, but no details of that alleged abuse are given and it is not possible on the evidence before the Tribunal to conclude that the applicant has been the victim of family violence.

25. The second part of the applicant’s explanation is that during the time that his marriage was ending he also suffered from sciatica, and from sensations of tingling, ‘pins and needles’, and numbness that accompanied his sciatic pain, as well as occasional muscular weakness in his legs. He states that his lower back pain made it difficult for him to walk properly, and that he was taking large amounts of pain relief medications. Ultimately, after x-rays, his doctor determined that he had a broken bone.

26. The applicant says that these difficulties negatively affected his studies, and that his health condition at the time raises “a clear concern that the applicant may not have had the ability to successfully complete a higher education course in Australia.”

27. The evidence before the Tribunal does not indicate whether the applicant sought medical help for his depression and anxiety. There are many reasons why a person might not seek help for such conditions, but it does leave the Tribunal in the position of having no independent evidence before it substantiating this claim. However, it is clear that he obtained medical help for his sciatica and associated physical conditions, and was therefore in a position to provide evidence substantiating his claims in that regard. No such evidence was provided to the Tribunal. Further, the fact that the applicant enrolled in a vocational course (Commercial Cookery) that involved practical work that would have been difficult for anyone suffering the physical problems the applicant claims to have suffered also raises some doubts as to his claims in that regard, at least as to the extent of his physical issues. The Tribunal also notes that the words used in the applicant’s submissions quoted in paragraph 26 above are tentative in tone, and do not amount to a clear statement that the applicant simply could not continue to study in a higher education course.

28. Taking all these considerations into account, the Tribunal accepts that the applicant experienced some emotional, psychological, and physical difficulties in the period leading up to his enrolment in Commercial Cookery at Stanley International College, but without any independent evidence at all as the extent and duration of those difficulties the Tribunal gives these circumstances only some weight in favour of the applicant.

    Degree of hardship that may be caused

29. The applicant has submitted that if his visa is cancelled he will suffer several kinds of hardship. Some of them take the form of mandatory legal consequences, and will be discussed under that heading below.

30. The first kind of hardship that the applicant claims he will suffer is that he will have fewer employment options if he does not complete his current studies (that is, his hospitality studies) in Australia. This may be true in a general or abstract sense. However, there is no evidence before the Tribunal that would allow it to make any assessment of this claimed hardship as a concrete possibility. There is, for example, no evidence of the employment prospects the applicant would have if he completed those studies, or the remuneration he would receive with the qualifications in question. Nor is there any evidence of his prospects of finding employment in other areas without those qualifications, although the Tribunal notes that in his submissions the applicant states that he “successfully finished his accounting degree at Tafe Western Australia.”  The applicant is not, therefore, entirely without Australian qualifications. Be that as it may, without such evidence, it is impossible to determine whether the claimed loss of prospects would amount to a real hardship, or to assess the extent of such hardship.

31. The other forms of hardship the applicant claims are put not as hardships he will suffer, but rather as hardships his family will suffer.  The first of these kinds of hardship is the embarrassment and displeasure his family will feel if his visa is cancelled and he is unable to complete his studies in Australia. The Tribunal is prepared to accept that the applicant’s family may feel shame to some degree, and that they may well visit that shame on the applicant in some way. The implication in the applicant’s submission is that this shame will have some kind of public dimension, and will lower his and his family’s stature in the community. However, once again there is no evidence before the Tribunal that would allow it to assess the extent or consequences of that state of affairs, either for the applicant’s family or the applicant himself.

32. Similarly, the applicant claims that the cancellation of his visa may impact on his family’s business because “their business partners will not trust them anymore.” Without further evidence on this point, the Tribunal is unable to assess it, except to say that it seems extremely improbable on its face.

33. Finally, the applicant claims that his family will suffer because they have “invested significant financial resources in his study in Australia, seemingly for no result.” The Tribunal is prepared to accept that this constitutes a form of hardship. However, there is no evidence of the extent of that investment of resources.  Without such evidence, it is impossible to take this point further.  The Tribunal notes once again that on the applicant’s account he has obtained some Australian qualifications at least. The resources invested in his education in Australia have not, therefore, been entirely wasted.

34. Taking all these matters together, the Tribunal gives only slight weight to this factor as a factor in favour of the applicant.

    Past and present behaviour of the visa holder towards the Department

35. There is no indication on the evidence before the Tribunal that the applicant has behaved in any untoward manner before the Department, or has in any way failed to cooperate with it. The Tribunal gives this factor some weight in the applicant’s favour.

    Are there mandatory legal consequences?

36. If the applicant’s visa is cancelled, he could become an unlawful non-citizen, with the possibility of being detained pursuant to s.189 of the Act, and the possibility of being removed from Australia pursuant to s.198 of the Act. There is nothing in the material before the Tribunal that suggests that the applicant may be liable to indefinite detention.

37. Further, s.48 of the Act may operate to restrict the classes of visa for which he may apply. As a further consequence, he may be affected by Public Interest Criterion 4013 and so become ineligible for the grant of a further temporary visa for a specified period.

38. The applicant has explained in his written submission that he did not know that his Bachelor of Business enrolment had been cancelled. The Tribunal finds this explanation unconvincing. The applicant must have realised that there would be some consequence if he did not commenced studies for his Bachelor’s degree, and can hardly have expected his education provider to keep his enrolment open in that circumstance, at least without his making an application to defer. Indeed, as noted in paragraph 21 above, the applicant does appear to have taken steps on his own initiative to regularise his position before receiving the Department’s NOICC.

39. The consequences noted above are all part of the scheme of the Act and should be expected as consequences of breaching a visa condition. The Tribunal gives this factor only slight weight in favour of the applicant.

    Are there any consequential cancellations that would result?

40. There is no evidence before the Tribunal suggesting that cancellation of the applicant’s visa would result in the cancellation of the visa of any other person. The Tribunal gives this factor no weight, either for or against the applicant.

    Would any international obligations be breached as a result of the cancellation?

41. There is no evidence before the Tribunal suggesting that cancellation of the applicant’s visa would involve a breach of any of Australia’s international obligations. Once again, the Tribunal gives this factor no weight, either for or against the applicant.

    Any other relevant matters

42. There is no evidence before the Tribunal raising any other relevant matter that should be considered in determining the applicant’s review application.

43. Considering the circumstances as a whole, the Tribunal finds that although there are a number of factors favouring the applicant, they are outweighed by the factors in favour of the cancellation of the applicant’s visa, and concludes that the visa should be cancelled.

    DECISION

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

    David Thompson
    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.