Nguyen (Migration)

[2019] AATA 3474

Nguyen (Migration) [2019] AATA 3474 (24 July 2019)

DECISION RECORD

APPLICANT:  Ms Thi Thao Nhung Nguyen

CASE NUMBER:  1833839

HOME AFFAIRS REFERENCE(S):         BCC2018/3839598

MEMBER:Dominic Triaca

DATE:24 July 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 July 2019 at 4:32pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – maintain enrolment in the higher education sector – consideration of discretion – purpose of visa not fulfilled – lacking understanding of visa conditions – responsibility of visa holder – affected by personal challenges – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 November 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 of the Migration Act 1958 (the Act).

2. The visa had been granted on the basis that the applicant would remain enrolled in, and make satisfactory progress in relation to a Bachelor of Business course.

3. The delegate cancelled the visa under s.116 (1)(b) of the Act on the basis that she had breached the condition on her visa that required her to maintain enrolment in a course of study that is a principal course of the Bachelor’s type. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. 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.

5. 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

6. The applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations), as they were, when the visa was granted. In the present case, the issue is whether the applicant has breached condition 8516 of the Regulations. If the applicant has breached that condition, then the visa may be cancelled pursuant to s. 116 of the Act.

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. Relevantly, to this case, these include the ground set out in s.116 (1) of the Act. 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

8. 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 attached to the applicant’s visa. This condition requires the applicant to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. The relevant criteria pertaining to the applicant’s student visa in this case can be found in clauses 573.231 and 273.223(AA) of Schedule 2 of the Regulations, as they then applied. The applicant was under a continuous obligation to remain enrolled in a Bachelor’s level course of higher for the entire duration of the visa.

9. The applicant’s visa was granted on 6 January 2015. In the delegate’s decision record, the delegate identified the period from 27 July 2017 to 14 November 2018 as the relevant period in which the applicant was not enrolled in a bachelor’s level course. This amounted to approximately 15 months during which the applicant was in continuous breach of the visa.

10. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (PRISMS). The PRISMS report obtained by the delegate indicated that the applicant’s education provider, La Trobe University, had cancelled her enrolment on 27 July 2017.

11. The Department of Home Affairs wrote to the applicant on 16 October 2018 notifying her of its intention to consider cancelling her student visa (the NOICC). That notice set out particulars of the alleged breach by the applicant of condition 8516. The applicant was invited to comment on these allegations before the Department moved to cancel her visa.

12. The applicant responded to the NOICC (the NOICC response) on 22 October 2018. In that response she conceded she had stopped studying a Bachelor’s course choosing to transfer to a Diploma level course.

13. In her oral evidence before the Tribunal, the applicant admitted that she stopped studying the Bachelor’s course and her enrolment had been cancelled on 27 July 2017.

14. The Tribunal has read and had regard to statements made by the applicant in relation to the cancellation or proposed cancellation of her visa variously dated 26 September 2018, 21 October 2018, 18 November 2018 and 11 July 2019. The applicant elaborated on the issues raised in these statements in her oral evidence before the Tribunal.

15. Based on all the material available, the Tribunal is therefore satisfied applicant was in breach of condition 8516 of her student visa and so finds.

16. 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 the visa should be cancelled.

    Consideration of discretion

17. 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’.

18. The applicant is a 25 year old citizen of Vietnam. She arrived in Australia in 2015. She arrived with the intention of studying a Bachelor of Business at La Trobe University. She commenced studying at La Trobe and appears to have made reasonable progress in 2015 and 2016. She says she initially studies English classes and then Business classes. She attained a Diploma of Business from Latrobe on 6 February 2017.

19. In early 2017 she fell pregnant to her Australian Partner. She ultimately lost the baby. She also broke up with her Partner. Around the same time, she lost her accommodation and moved from a suburb geographically close to La Trobe into Noble Park and later Sunshine. Moving some distance from La Trobe and pregnancy created a period of difficulty for her. She provided medical certificates from 23 February 2017 and 9 March 2017 that refer to pregnancy related symptoms and morning sickness.

20. In February 2017 she attempted to obtain a release from La Trobe, writing to the University on 13 February 2017 requesting a release to enable her to continue her studies at Kaplan Business School. The University refused the request to release citing the fact that she had not completed 6 months of her principal course of study, had given insufficient evidence to support her claims and La Trobe offered the same or similar course to her intended studies at Kaplan.

21. However, in July 2017, La Trobe approved to grant a release from the course she had chosen to commence at La Trobe University and provided her with a Letter of Release to enable her to take up an offer of admission to Diploma of Beauty Therapy from Academia International.

22. She commenced the Diploma of Beauty in July 2018 and provided a copy of her academic transcript demonstrating her successful completion of this course. She enrolled in and commenced study at Melbourne Hair and Beauty in August 2018. She studied that course for 2 months until her visa was cancelled in September 2018. She states her life has been “on hold” since that time.

23. She subsequently applied for a tourist visa but her application was refused.

24. The applicant’s evidence is that her plans have changed somewhat since first arriving in Australia. She commenced studying business related courses at the instigation of her parents with a view toward returning to Vietnam in order to take over her parents’ business. She says that following the turmoil she experienced in early 2017, she changed her outlook and decided to follow her passion which was to enter the beauty industry. She reports that she would like to one day open her own business in the Beauty industry and completing her studies in hairdressing would be advantageous to her realised her goals.

25. The difficulty for the applicant is that she was granted a student visa that was subject to conditions requiring her to maintain enrolment in a course of study that is a principal course of a Bachelor’s type. From July 2017, the applicant ceased being enrolled in the Bachelor’s course choosing to enrol in the Diploma of Beauty course which is at a lower level than the Bachelor’s course and accordingly in no way cures the continuing breach of her visa.

26. The fact that the applicant appears to have excelled at the Diploma of Beauty course and wishes to undertake further related studies to obtain a Hair Dressing qualification must be given little weight. The visa she was granted was for a higher level Bachelor’s course – not a lower level Diploma.

27. The applicant states she did not understand the effect of the visa conditions[1] and assumed that she was compliant with the visa conditions whilst she continued to study. However, the Tribunal considers that the applicant is ultimately responsible for understanding her visa requirements and ensuring compliance with the visa conditions. Visa holders are expected to be mindful of their own visa requirements and inform the Department of any changes to their status. This includes being aware of any conditions such as condition 8516. This is not a case of inadvertent error or extenuating circumstances beyond the applicant’s control. The applicant made a conscious choice to downgrade her studies and consequently breached her visa.

    [1] See for example her statement dated 21 October 2018, “I realise now by not completing the “Bachelor of Business” as part of my visa requirement I have put my visa in jeopardy. This was not my intention. It was never explained to me that by doing so it would affect by visa.”

28. The Tribunal has given consideration to the applicant’s expressed desire to remain in Australia and complete her education that will enable her to return to Vietnam with a qualification. She states that she would be returning home with “nothing”. I pointed out to her that this was not exactly correct, nothing that she has obtained a Diploma of Business from La Trobe University and a Diploma of Beauty from Academia International. However, her desire to continue to study must be tempered with the extent of her non-compliance with the conditions of her visa. It was a student visa which obliged her to prioritise studying in a Bachelor’s course in Australia the entire time she has been here. In the Tribunal’s view, she has chosen to embark on an alternative path and not taken advantage of this opportunity.

29. The Tribunal has regard to the matters raised by the applicant in relation to her pregnancy, her relationship breakdown and her accommodation issues in the first half of 2017. The Tribunal acknowledges the burdens of pregnancy and accepts the medical evidence demonstrating she experienced some difficulty in February and March 2017. It also accepts the loss of the pregnancy would have taken an emotional toll on the applicant. It follows that the Tribunal accepts that it is likely that she was operating under great difficulty during this period of time.

30. However, the evidence is that she stopped studying in the required Bachelor’s course in mid-2017 and chose to study a lower level Diploma course and did not take steps to ensure compliance with her visa obligations over an extended period of time. It would have been open to the applicant (with the assistance of an agent) to maintain or effect registration in an appropriate package of courses leading to a Bachelor degree or, seek to defer those courses whilst she resolved her issues.

31. It seems apparent that the applicant found herself studying business courses that she did not enjoy and chose to study courses that she felt better suited to. She states, “Then when I made my first step in Diploma of Business, I found out that I did not like this major at all. The more I study, the more I realised that it did not suit me. At this time, I decided to follow my own interests. I also persuaded my family that I wished to run a beauty business when I come back and not follow the family business. The diploma course in business was already enough.”[2] Unfortunately this led her into breach of the visa condition for an extended period of time. Whilst the Tribunal would be minded to make some allowances for the applicant’s circumstances in the first half of 2017. However, the circumstances of the applicant, do not excuse her from failing to take meaningful steps in relation to her visa obligations and choosing another path.

    [2] Applicant’s statement 26 September 2018

32. The Tribunal has given consideration to the applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in this regard. There also do not appear to be any consequential cancellations under s 140 of the Act that will follow if the applicant’s visa is cancelled.

33. The Tribunal notes that if the applicant’s visa is cancelled, the applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if she does not voluntarily depart Australia. However, her evidence before the Tribunal was that she would return to Vietnam if her visa was cancelled and in those circumstances there is no indication that she would become unlawful or be subject to detention so I give this factor no weight.

34. The Tribunal accepts that the applicant is likely to suffer some hardship if her visa is cancelled. She has invested money and time in Australia for the purpose of gaining qualifications. She says she has paid $5000 toward the Hairdressing course. She considers this would be lost if the visa is cancelled. She says she is 25 years old and it will be difficult for her to “start again” in Vietnam. The Tribunal accepts that the applicant may suffer some emotional hardship if she returns to Vietnam without graduating in the courses she had hoped to, especially in circumstances in which she says her parents had assisted her financially. The Tribunal gives the applicant’s hardship some weight against cancellation.

35. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

36. The Tribunal does not consider that any hardship the applicant will suffer outweighs the fact that the applicant chose to pursue a course of study that was in breach of her visa conditions for a considerable period of time. Considering all the evidence, and the circumstances of the case as a whole, and weighing the evidence, the Tribunal is satisfied that the applicant’s visa should be cancelled.

    DECISION

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

    D.Triaca
    Member