Nguyen (Migration)

[2019] AATA 3593

Nguyen (Migration) [2019] AATA 3593 (27 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duy Tung Nguyen

CASE NUMBER:  1824336

HOME AFFAIRS REFERENCE(S):           BCC2018/1695901

MEMBER:Christine Kannis

DATE:27 July 2019

PLACE OF DECISION:  Perth

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

Statement made on 27 July 2019 at 11:25am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –not enrolled in a registered course of study – breached condition 8202 – parents faced financial hardship – no documentary evidence – provided incorrect information–  lack of credibility –decision under review affirmed

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

CASES
Liu v MIMIA [2003] FCA 1170.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 August 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 25 June 2019 to give evidence and present arguments. The Tribunal also received evidence by telephone from Mr Liam Reynolds and Mr Luke Bell.

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

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. 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. Relevant to this case, these include the ground set out in s.116(1)(b). 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.

   Did the applicant comply with Condition 8202?

8. On 4 February 2016 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

9. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since his enrolment in a Bachelor of Business was cancelled on 15 August 2017. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 15 August 2017. The Tribunal finds that he breached condition8202(2)(a) of his visa.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

11. 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’, as set out below.

12. On  9 August 2018 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

    Response to NOICC

13. On 16 August 2017 the applicant responded to the NOICC  and provided the following information:

    ·Before he came to Australia his parents thought they could financially support him but the family business was not doing well.

    ·On 12 December 2017 his sister had a serious accident and she was hospitalised for long periods. Not long after his brother was also involved in an accident. His family had no choice but to focus financially on his brother and sister and he had no financial support.

    ·It had been his dream and the dream of his parents that he study Accounting and Finance in Australia. His sister and brother have recovered, the family business is doing better and his parents can financially support him so he will not lose financial support again.

    ·If given the chance he will contact his education provider, Edith Cowan University (ECU) and return to college as soon as possible.

14. Prior to the hearing the applicant’s representative provided additional documents which included but were not limited to enrolment information, CoEs, certified translated Medical Certificates and a copy of the applicant’s passport photo page.

    Evidence at hearing

15. The applicant told the Tribunal he stopped studying because his parents faced financial hardship as a result of having to pay medical expenses for his sister. He said his sister was injured in a car accident on 30 December 2017. She suffered a broken collarbone and was hospitalised.

16. The Tribunal noted that in his response to the NOICC the applicant said on 12 December 2017 his sister had a serious accident and was hospitalised for long periods. A Medical Certificate shows his sister, Thi Thu Phuong Nguyen, was hospitalised for two days from 30 December 2017. He told the Tribunal that his sister did not want to stay in hospital and so his parents had to pay for her medical expenses during her recovery at home.

17. In his response to the NOICC the applicant said shortly after his sister had an accident his brother was also involved in an accident. A Medical Certificate shows his brother, Hong Ngoc Nguyen, was hospitalised for three days from 8 July 2016, some 18 months prior to the date of his sister’s accident.

18. The Tribunal put to the applicant that in his response to the NOICC he had provided incorrect information to the Department with respect to the date of his sister’s accident, the date of his brother’s accident and the period of his sister’s hospitalisation. He conceded he had provided incorrect information and said the reason was because he was required to provide a quick response to the Department and he was scared.

19. The applicant told the Tribunal that in addition to paying his sister’s medical expenses, his parents were unable to financially support him because their restaurant business was not going well. No documentary evidence was provided to substantiate that significant medical expenses were incurred which impacted on the applicant’s enrolment. The Tribunal noted that his enrolment was cancelled more than four months prior to his sister’s accident. No documentary evidence was provided to substantiate that a downturn in his parents’ business impacted on his enrolment from 15 August 2017. In the absence of any documentary evidence, the Tribunal does not accept that the applicant experienced financial difficulties that prevented him from enrolling in a course from 15 August 2017.

20. Regarding the applicant’s claim that he was unable to maintain the required enrolment due to financial difficulties, the Tribunal notes that it is a requirement for the grant of a student visa that visa holders can financially support themselves for travel, living costs and tuition fees during the stay in Australia. If a visa holder is experiencing financial difficulties it is reasonable to expect the visa holder to temporarily depart Australia until their financial situation improves rather than remain in Australia and continue to not comply with their visa conditions.  

21. The applicant told the Tribunal that during the 12 months from cancellation of his enrolment until he received the NOICC, he worked casually to support himself. He said he tried to secure an Accounting internship in early 2018 but he was not qualified for the position. He said in early 2018 he contacted ECU and advised that due to financial hardship he could not re-enrol. He did not contact ECU again about enrolment until after his visa was cancelled.

22. In May 2019 he applied to enrol at Stott’s College in a course. He is currently awaiting assessment of his application.

23. The applicant said his parents have the financial capacity to once again pay his tuition fees.

24. The Tribunal put to the applicant that he remained in Australia for 12 months as the holder of a student visa during which time he wasn’t studying and did not make any attempt to enrol in a course. He said he made a mistake, he was young and he wants a second chance.

25. Mr Liam Reynolds told the Tribunal he has known the applicant for three years and has been living with him for three months. He said he is aware that the applicant’s parents were experiencing financial hardship a few years ago because it came up in conversation with the applicant.

26. Mr Luke Bell told the Tribunal he has known the applicant for three years and that about 12 to 18 months ago the applicant told him that his parents were having financial difficulties.

27. When asked about the hardship that may result from cancellation of his visa the applicant said if he returns to Vietnam with only a Diploma of Business and not a Bachelor of Business he will have to  return to Year 12. He said a Diploma of Business is not accepted in Vietnam. He said it has been his dream and his parents’ dream that he obtain a Bachelor of Business from a developed country such as Australia. He wants to finish studying Accounting so that he can work for a company in Vietnam.

28. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

29. The applicant told the Tribunal his purpose in coming to Australia was to study a Bachelor of Business.  

30. At the time the NOICC was issued the applicant had not been enrolled in a registered course for 12 months. The Tribunal accepts that the applicant has completed a Certificate IV in English for Academic Purposes, a Certificate IV in Business and a Diploma of Business however he was not enrolled for an extended period of 12 months and his evidence was that he did not try to enrol again until his visa was cancelled.

31. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. 

32. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. He said he cannot return home yet because he loves studying and it is his parents’ dream that he finish his study.

33. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

34. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this some weight in his favour.

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

35. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to him and his family however it is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

36. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant said he was unable to maintain enrolment because his parents were not able to provide financial support as a result of his sister being involved in an accident. He said their restaurant business was also not going well at that time. No documentary evidence to support the applicant’s claim that his parents experienced financial difficulties was provided. The Tribunal accepted the evidence of Mr Reynolds and Mr Bell but noted that it is based on what the applicant has told them and as such affords it limited weight.

37. Overall, the Tribunal finds the claimed reasons for the applicant’s non-enrolment not to have been supported by the available documentary evidence and to have been undermined by the applicant’s lack of credibility. Whilst the applicant’s sister may have been involved in a car accident that required two days hospitalisation, the applicant’s claim in the NOICC response was that she required long periods of hospitalisation and this was the reason his parents were unable to pay his fees. The applicant conceded he provided incorrect information and there was no documentary evidence to show that his parents’ financial difficulties were a credible barrier to maintaining enrolment in a registered course.

38. The Tribunal also notes that the applicant’s evidence was that he did not attempt to enrol in a course at any earlier date prior to cancellation of his visa. This lack of any further meaningful action, when it was open to him, after his enrolment was cancelled, has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as  a student visa holder.

39. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case. The Tribunal finds this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the department

40. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

41. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is 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

42. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour. 

    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

43. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.

    Any other relevant matters

44. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

    Conclusion

45. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8202 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking the study for which is visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

46. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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:

    (a)the holder is enrolled in a registered course; or

    (b)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:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)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;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)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.