Nguyen (Migration)

Nguyen (Migration) [2019] AATA 4643 (19 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Trung Dai Nguyen
CASE NUMBER:  1725723
MEMBER:Joseph Lindsay
DATE:19 June 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 19 June 2019 at 5:21pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – course enrolment – failed to maintain enrolment – mental health claims – financial support of family – insufficient evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision dated 19 October 2017 made by a delegate of the Minister for Immigration and Border Protection 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 applicant attended the hearing before the Tribunal on 8 April 2019. The applicant was not represented.
3.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

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?
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 registered course, or in limited cases, a full-time course of study or training: 8202(2), and
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The Tribunal asked the applicant about his student enrolment history in Australia. In response the applicant indicated that he did an English course and then had been due to commence a Master of Commerce at Deakin University. The applicant indicated that a problem arose during the time he was doing his English course. He indicated he had a discussion with his agent and that he wanted to move to another course provider that was closer to where he lived. The applicant indicated that for this reason he decided to change his provider to Holmes Institute to undertake a Master of Business Administration (MBA).
The Tribunal put to the applicant that what he had said in the hearing about his course enrolment history was accurately reflected in his Provider Registration and International Student Management System (PRISMS) record.
In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department dated 19 October 2017 indicating that he had not been enrolled in a registered course of study since 28 February 2017. In his response to the Tribunal, the applicant agreed that he had not been enrolled in a registered course of study since 28 February 2017.
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)(a). The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.
Consideration of the discretion to cancel the visa
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.’
Level of English
At the commencement of the hearing, the Tribunal asked the applicant if his intention was to use the interpreter for the entire time of the hearing and he responded “yes.” The applicant indicated that his level of English skill was at the “middle” level. He said that because of the importance of the hearing he wanted to use the interpreter because he was concerned that the Tribunal might use a lot of technical words.
The Tribunal put to the applicant that it had no problem with him using the interpreter. The Tribunal put to the applicant that he had indicated to the Tribunal that he wanted to use the interpreter for each and every exchange of communication between himself and the Tribunal and in response he said “not really.” The applicant then indicated that if he understood the question the Tribunal had asked him, he would answer in English and if he needed help he would go through the interpreter. The Tribunal explained to the applicant that he had come to Australia on a Subclass 573 Higher Education Sector visa. In response he said that was correct. The Tribunal put to the applicant that there presumably was a minimum level of English skill that he had that enabled him to get the student visa. In response he indicated that he did have the skill to talk but that he wanted the assistance of the interpreter should he require it.
The Tribunal put to the applicant that it had no problem with him using the interpreter, but that the Tribunal would consider what his level of English actually was and, based on that assessment, whether he had the requisite level of English to be able to go on and complete a higher education course in Australia.
The applicant responded, using the interpreter, that his level of English at the moment was around level 5 or 6 on his International English Language Testing System (IELTS) test and that meant his level of English was good enough for him to start technical education and then higher education later on but because the hearing was important he wanted to use the interpreter to ensure that everything he wanted to express was “correct and appropriate.”
The Tribunal asked the applicant what he meant by “correct and appropriate.” In response he said, in English, that he would talk in English but that if he needed the interpreter he would use the interpreter. The Tribunal indicated to the applicant that was fine. The Tribunal put to the applicant that for a 573 visa there was a requirement that the visa holder have a sufficient level of English skill to enable him or her to be enrolled in and complete a course of higher education in Australia. The Tribunal noted that the applicant had enrolled in a course at the Masters level, to which he agreed.
In consideration of the applicant’s English ability, it was apparent to the Tribunal that during the course of the hearing the applicant was heavily reliant on the interpreter to communicate with the Tribunal. Accordingly, the Tribunal finds that the applicant’s English abilities are not sufficient to satisfy the Tribunal that he would be able to successfully undertake and complete a tertiary course of study in English even if he had a student visa.
The circumstances in which the ground for cancellation arose
The Tribunal asked the applicant what circumstances had led to the cancellation of his course enrolment on 28 February 2017. In response the applicant indicated that the first reason was the irresponsibility of the migration agent who was doing his 457 visa.
The Tribunal asked the applicant what that had to do with his student enrolment.
In response the applicant indicated that his agent did not explain to him that during his application for the 457 visa he needed to enrol in a course in order to comply with the requirements of his student visa conditions.
The Tribunal explained to the applicant that the only matter the Tribunal could deal with was in relation to his student visa and not his 457 visa. The Tribunal asked the applicant why he was not enrolled.
The applicant indicated that he knew that, as part of having his 573 student visa, he needed to be enrolled. He indicated that he also had applied for a 457 visa. He said he asked his migration agent about whether he needed to keep studying but he never heard back. He indicated that the confusion arose for him where he was on the 573 visa but had applied for a 457 visa.
The Tribunal put to the applicant that he had indicated he was going through his migration agent to obtain a 457 visa but that his agent did not explain to him what was happening in relation to his student visa. The applicant indicated to the Tribunal he “didn’t know about that.” The Tribunal asked the applicant what he was trying to say when he said he “didn’t know about that.” The Tribunal put to the applicant that his starting point was that he was on a 573 visa and that he had been on a 573 visa from 2015 to 2017, some two years during which time he had actually not done any of his postgraduate study. In response the applicant said “correct.”
The Tribunal put to the applicant that he had indicated to the Tribunal that he had been on a 573 student visa for two years where he was meant to be studying, and he indicated to the Tribunal that he did not know he had to remain enrolled because his agent didn’t tell him.
In response the applicant indicated that this was only the first reason but he had other reasons to explain. The Tribunal told the applicant that it just wanted to discuss the first reason he had explained and asked him to confirm that he was telling the Tribunal that he did not remain enrolled because his agent didn’t tell him that he needed to remain enrolled. In response the applicant said “yes.” The applicant claimed that his migration agent did not provide him with enough information that he needed to know when he was transferring from a 573 visa to a 457 visa.
The Tribunal put to the applicant that it may put low weight on his not knowing he had to remain enrolled because his agent didn’t tell him, because he had been on a 573 student visa for two years, and that the Tribunal would reasonably expect that as the visa holder he would know that he had to remain enrolled in a registered course of study.
In response the applicant said “yes I understand.” He indicated he didn’t understand about the gap. When the Tribunal asked him what he meant by “the gap”, he indicated that he thought that he was on a bridging visa when he applied for the 457 visa.
The applicant passed the Tribunal a letter that indicated it was an “e-medical referral letter” generated on 4 September 2017 in respect to an application for a 457 visa. The Tribunal asked the applicant what the point was of him giving this document to the Tribunal. In response he said he knew that while he was on a 573 student visa he had to remain enrolled in a course. He indicated that after lodging the 457 visa he thought he had a bridging visa as well as the 573 student visa. He indicated he did not know whether to just wait or enrol but he decided not to enrol.
The Tribunal asked the applicant when he applied for the 457 visa. In response he said he didn’t have the exact date because the agent was the one that lodged the application for him. He indicated he thought the 457 visa application would have been lodged before the date of the “e-medical referral letter”. The Tribunal asked the applicant if he lodged the 457 visa application and in response he indicated that his agent told him that he lodged the 457 visa application for him.
The Tribunal asked the applicant when approximately he thought the agent applied for the 457 visa for him. In response he said he had no idea. The Tribunal put to the applicant that he must have some idea. He responded that he thought he lodged the application some time before he received a request for his medical check. He confirmed that he did not know when exactly his 457 visa application was lodged. He indicated he had lost his laptop which should contain information as to when he lodged his 457 visa application. The Tribunal asked the applicant whether he had lodged his 457 visa application sometime in 2017 to which he responded “yes.” The applicant said that the process of lodging the 457 visa application contained so many steps and he thought that the first step was the nominations and he thought he was still in that part of the process.
The Tribunal put to the applicant that the 457 visa process was one thing but that he had indicated that he had immersed himself in trying to get a 457 visa and the Tribunal accepted that that’s with the applicant had gone and done. The Tribunal put to the applicant it may not put much weight on what he had said because the Tribunal was concerned with his 573 visa. In response the applicant indicated he came to Australia on a student visa in 2015 and his brother also came to Australia on a student visa in 2016. The applicant said that the person who financed their education was his family and especially his mother. He claimed that his mother was the one who managed the family business.
The Tribunal asked the applicant why he did not remain enrolled in his course of study. In response the applicant said his mother got sick and she was the person who financially supported him. He indicated that he did not have money. He explained that his family was supporting him and his brother.
The Tribunal put to the applicant that he indicated that he did not have enough money to pay his course fees. In response the applicant indicated that at the time he did not have enough money to pay his course fees.
The Tribunal asked the applicant that, at that time, when he found he did not have enough money to pay his course fees whether he told his course provider and whether he told the Department of his situation. In response the applicant said “no.” When asked whether there was any reason why he did not contact his course provider or the Department, he explained it was because he thought he might have the opportunity to work legally for some money on a 457 visa as he was advised by his migration agent. He also explained that because of his limited finances at the time the priority was given to his younger brother. The Tribunal asked the applicant whether his brother was still in Australia and in response the applicant indicated his brother was still in Australia. When the Tribunal asked the applicant why his brother did not attend the hearing the applicant responded that his brother had to go to university.
The Tribunal put to the applicant that he indicated that his mother ran into trouble financially and could not pay for both him and his brother to study. The applicant confirmed that this was correct. The Tribunal put to the applicant that his brother got his course fees paid for but he didn’t, and in response the applicant agreed. He explained that at that time his mother was not in a position to pay for both him and his brother to study. He explained that sometimes the family business is good and sometimes it’s bad. He explained that the business went bad only for a short time and now everything was back to normal.
The Tribunal asked the applicant when everything came back to normal and he responded in August 2017. The applicant explained that August 2017 was already past the July 2017 intake and so he needed to wait until March 2018 to re-enrol. The Tribunal asked the applicant why he did not re-enrol and he responded that the July 2017 intake had already passed. The Tribunal put to him that he could still re-enrol. And in response the applicant indicated that his agent told him that for the Masters course they only accepted students for July or March intake. The Tribunal put to the applicant that he could still have had an enrolment in place. The applicant indicated that he did not know whether he should remain enrolled or wait for the outcome of this application for his 457 visa. He claimed he was acting on advice from his migration agent. He indicated he did not have enough information so he was reliant on advice provided by his migration agent. The Tribunal put to the applicant that it may put low weight on what he had to say because he had been a holder of a student visa and he still would be reasonably aware that he had to maintain compliance with the conditions of his visa. In response the applicant said this was a mistake and he knew.
The Tribunal put to the applicant that if it was a “mistake”, it happened quite a significant period of time into the period of his student visa.
The applicant provided further reasons to the Tribunal. He said that, as explained in his letter to the Tribunal, he had some psychological problems as a result of the combination of various things. He explained the first thing was that his mother got sick and then his family was not in a position to financially support both his and his brother’s studies. He explained that more importantly his ex-partner left him and therefore he was in a very stressed situation. The Tribunal asked the applicant whether he saw a psychologist or had access to mental health treatment of any kind. In response he said that he only went to the general practitioner because he thought the general practitioner would be able to help him resolve the problem on his own. But he explained that he was wrong. The Tribunal asked him what the general practitioner did for him. He said the general practitioner was the one he usually went to see since he arrived in Australia. He explained that the general practitioner talked to him and listened to him but he also listened to him as a friend.
The Tribunal put to the applicant that he had given the Department three medical certificates signed by Dr Nguyen.
The Tribunal asked the applicant why Dr Nguyen had reproduced these medical certificates for him. The applicant responded that it was around the time he received the warning letter from the Department asking him to explain the reasons why he was not enrolled in a registered course of study. This was the reason why he asked the doctor for those medical certificates. He explained that he went to the general practitioner and asked the general practitioner to confirm about the “treatments” that he had provided to the applicant.
The Tribunal asked the applicant to explain what treatments had been provided to him. In response the applicant said he “just talked” to Dr Nguyen.
The Tribunal asked the applicant why Dr Nguyen did not refer him to a psychologist or psychiatrist or any other mental health professional. In response the applicant said Dr Nguyen did offer to refer him to a specialist because he came to Australia with his determination he thought he could balance it himself but he was wrong. He said it took him a lot of time.
The Tribunal asked the applicant whether he had never had any medication for any mental health condition. In response he said “correct.”
The Tribunal put to the applicant that he had indicated he had never seen any mental health professional. In response he said “correct.”
The Tribunal put to the applicant that the only information it had in respect to his claim that he was affected by stress was the medical certificates from the doctor. The Tribunal put to the applicant that stress was not a diagnosis. The applicant responded that stress was a sign of mental crisis but he didn’t want to go to a specialist and also he did not have enough money to pay to see specialist.

The Tribunal asked the applicant whether he told his course provider or the Department that he was suffering stress. In response he said the school did receive some documents saying that he went to the doctor but in the documents it was not specified that he was under stress. The Tribunal asked the applicant what documents he was talking about. The applicant responded they were the medical certificates. The Tribunal referred to the medical certificates he had provided the Tribunal. The Tribunal put to the applicant that it had three medical certificates in handwriting from Dr Nguyen and then the applicant had given the Tribunal different medical certificates that were typed and signed by Dr Nguyen but that they were different documents. The Tribunal put to the applicant that the only thing that Dr Nguyen said in the first lot of medical certificates was that the applicant was suffering from a medical condition. The Tribunal put to the applicant that Dr Nguyen did not initially say that the applicant was suffering from stress. The Tribunal referred to the certificate dated 28 September 2017 covering 5 January 2017 and 1 April 2017. The Tribunal put to the applicant that all three documents were dated the same day (28 September 2017) and for two of the certificates dated 28 September 2017 Dr Nguyen was certifying that earlier that year (2017) the applicant consulted him but it did not say what for.
The Tribunal referred to the certificates that Dr Nguyen had typed out and put to the applicant that the certificates offered a very different perspective where the handwritten medical certificates indicated that the applicant actually only saw the doctor once – on 28 September 2017. The Tribunal put to the applicant that Dr Nguyen indicated in his updated certificates that he did not actually see the applicant on 5 January 2017 or 1 April 2017.
The applicant claimed that Dr Nguyen should have the records of the days that he actually attended the doctor. The applicant said that on 28 September 2017 he asked Dr Nguyen to confirm or certify the earlier visits he went to see him. The applicant indicated that the way that Dr Nguyen typed or expressed himself may be misleading.
The Tribunal put to the applicant that the onus is on him to get the records from the doctor and the onus is on him to make his case. The Tribunal put to the applicant that he had a long time to prepare for the hearing and that he had provided the documents to the Tribunal. The Tribunal questioned the applicant about when he actually consulted Dr Nguyen. In response, the applicant said it would have been very easy to confirm when the appointments were that he saw the doctor.
The Tribunal put to the applicant its concern that there were three medical certificates handwritten each dated 28 September 2017 and then for some reason the same doctor has decided to issue three further typed certificates, two dated 28 September 2017 and one dated 27 November 2017.
The applicant explained that Dr Nguyen told him he cannot rewrite new medical certificates rather he could only confirm what he had written. He indicated that that was the explanation why the certificates were dated the same day. The applicant indicated he didn’t keep the medical certificates at the time but that he had gone back to his doctor to check the certificates.
The Tribunal asked the applicant why Dr Nguyen produced different certificates. In response the applicant said he did this because those dates were on the system so he only reconfirmed that on those days the applicant went to see the doctor. The applicant then explained he did not know why Dr Nguyen did that for him, but he confirmed he asked the doctor to produce the new certificates for him.
The Tribunal pointed out to the applicant the doctor had actually changed the certificates. The Tribunal explained that on the handwritten medical certificates he created initially, Dr Nguyen did not say the applicant was suffering from stress. The applicant said that that was the doctor’s authority. The Tribunal put to the applicant that it had concerns about how the medical certificates were produced because they were inconsistent. The applicant said he could not give an answer to the Tribunal for that.
The Tribunal put to the applicant that in any event it indicated to the Tribunal that there were three days only that he indicated he was suffering from stress. In response he said three periods of time and not three days. The Tribunal put to him that one of those dates (5 January 2017) was before the time he ceased his enrolment yet the other two dates, that being 1 April 2017 and 28 September 2017, were after he ceased his enrolment in his registered course of study. In response the applicant said that was the reason why he decided to re-enrol later on. The Tribunal put to the applicant that he did not re-enrol. The applicant indicated that he decided not to re-enrol because his mental condition was not yet ready.
The Tribunal put to the applicant that the medical evidence he provided did not support what the applicant was saying happened to him. The applicant indicated that only he and his brother knew about what happened to him and he indicated he was trying to manage himself and that’s why he didn’t go to a specialist for it. He explained that he came to the Tribunal not to win because he spent one year of time and money in Australia; he came to Australia to study. He indicated that when his finances improved he wanted to study again. He contacted a university and during this time he studied by himself. The Tribunal put to the applicant that the only thing he had done was an English course and that he already said that he never actually started either Masters courses. The Tribunal put to the applicant that the only thing he studied over two years was an English course. In response he said yes.
In respect to the above, the Tribunal makes the following findings.
The Tribunal accepts that the applicant believes it is his migration agent’s fault that his student visa was cancelled. However, the Tribunal finds the applicant’s belief to be unreasonable.
The Tribunal finds that the applicant had been granted a Subclass 573 Higher Education Sector student visa in 2015.
The Tribunal finds that the applicant was reasonably aware that he came to Australia to undertake a course in higher education, in particular, a Master’s degree and he was reasonably aware that he was required to comply with the conditions of his student visa, including that he had to remain enrolled in a registered course of study.
The Tribunal finds that from 2015 to 2017 the applicant did not actually do any postgraduate study – a fact readily admitted by the applicant.
The Tribunal finds that on 28 February 2017 the applicant ceased his course enrolment and he has not been enrolled since that time.
The Tribunal finds that the applicant appears to have applied for a 457 visa and was under the impression that by doing so he would have at least a Bridging Visa E to allow him to lawfully stay in Australia. In any event, the Tribunal gives no weight to this evidence in the applicant’s favour because his actions do not indicate that he has a genuine desire to continue with and complete his studies.
The Tribunal accepts that due to his family’s difficult financial circumstances the applicant was not able to pay for his course fees. The Tribunal finds that the applicant did not advise his course provider or the Department about his circumstances. As part of having his student visa, the applicant was reasonably aware that he was required to provide a financial guarantee that he could pay for the costs associated with his studies, including paying his tuition fees. Accordingly, the Tribunal gives no weight to this evidence in the applicant’s favour because he was reasonably aware that he was required to comply with the conditions of his student visa, including that he had to remain enrolled in a registered course of study.
The Tribunal has considered the applicant’s claims he suffered from psychological problems. The evidence the applicant provided in support of his claims were a number of medical certificates from general practitioner, Dr N.C. Nguyen. In his response to the Department, the applicant provided three medical certificates from Dr N.C. Nguyen. These are handwritten and typed medical certificates. All three certificates are dated 28 September 2017 in respect to the applicant. However, the three certificates cover different timeframes – 5 January 2017, 1 April 2017 and 28 September 2017. Three full days in total. All three certificates state that the applicant suffered from a “medical condition” but there is no indication as to what that medical condition is. In his submission to the Tribunal, the applicant provided three medical certificates from Dr N.C. Nguyen – but the certificates are different. The certificates are typed. There are two medical certificates dated 28 September 2017, and one dated 27 November 2017. One of the medical certificates dated 28 September 2017 covers the full day of 28 September 2017 and merely indicates that the applicant was unfit for normal work on that day. There is no indication of what medical condition the applicant has or even any reference to any medical condition at all. The other medical certificate dated 28 September 2017 states “he stated that he was suffering from stress, he could not attend school on 05/01/17 and 01/04/17.” There is no indication of what medical condition the applicant has or even any reference to any medical condition at all, noting that stress is not a diagnosis. The third medical certificate, dated 27 November 2017, states that on that day Dr N.C. Nguyen examined the applicant and “he is fit and well, free of symptoms of stress.” The Tribunal accepts that the applicant consulted Dr N.C. Nguyen, and that Dr N.C. Nguyen “listen to” the applicant. However, the Tribunal does not accept that Dr N.C. Nguyen diagnosed the applicant with any mental health condition and nor did he provide medical treatment to the applicant for any mental health condition. The Tribunal finds that Dr Nguyen did not refer the applicant to a psychologist or psychiatrist or any other mental health professional.
The Tribunal finds that the applicant has never had any medication for any mental health condition. The Tribunal finds that the applicant has never consulted any mental health professional.
The Tribunal places no weight in the applicant’s favour on any of the medical certificates from Dr Nguyen.
The Tribunal finds that the evidence from Dr Nguyen does not support the finding that the applicant consulted the doctor on 5 January 2017. Both the handwritten and typed medical certificates dated 28 September 2017 indicate that the applicant did not actually consult Dr Nguyen on 5 January 2017 – the only day the applicant claimed he was ill before he ceased his enrolment in his registered course of study (28 February 2017). Rather, the reports indicate that it was only on 28 September 2017 that the applicant advised Dr Nguyen that he was suffering from stress and could not attend school on 5 January 2017. The Tribunal places no weight on the medical certificates purporting to establish that the applicant was suffering from a medical condition some nine months prior to the date the applicant actually consulted the medical practitioner.
The Tribunal finds that the remaining certificates refer to dates that are well after the time the applicant ceased his enrolment in his registered course of study (28 February 2017). The Tribunal places no weight on the certificates purporting to indicate that the applicant was medically unfit to attend school on 1 April 2017 because the applicant was not even studying at this time as he had ceased his enrolment in his registered course of study (28 February 2017). Likewise, the Tribunal places no weight on the certificates purporting to indicate that the applicant was medically unfit on 28 September 2017 because the applicant was not even studying at this time as he had ceased his enrolment in his registered course of study on 28 February 2017. The Tribunal places no weight on the certificates purporting to indicate that the applicant was medically unfit on 27 November 2017 because the applicant was not even studying at this time as he had ceased his enrolment in his registered course of study on 28 February 2017.
The Tribunal places high weight against the applicant given that the applicant remained without any enrolment at all for approximately seven months before the Department sent him the Notice of Intent to Consider Cancellation (NOICC).
In assessing the above, the Tribunal finds that the applicant failed to take reasonable steps in regard to maintaining his enrolment in his registered course of study. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
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
The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
The extent of compliance with visa conditions
The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled. In response he said that he felt like he wasted three years of his youth and his time and money without achieving anything. He then said that another difficulty was that he would no longer be in Australia to supervise his younger brother. He explained that when his brother first came to Australia he was under 18 years of age and he was his guardian at that point. He then explained his brother was now over 18 years of age and he is no longer his guardian.
The applicant explained that he had lost his chance or opportunity to achieve a good education and an opportunity to work and live in a beautiful country.
He indicated that he contacted Victoria University asking about course information. He provided the Tribunal a copy of the information in respect to his interest in studying at Victoria University. The applicant actually indicated that he himself continued to study in the library even though he was not enrolled.
The applicant also indicated that his personal circumstances were that he is now married and has a baby. He indicated that if he had to go back to Vietnam this would affect his child and wife.
The applicant indicated he had married an Australian citizen and unfortunately his child suffered [Medical Condition 1] and that therefore the child would need the support of both his wife and himself as much as possible.
The Tribunal put to the applicant that the child was born on [date], to which he agreed that was correct. The applicant then indicated that the child was actually not his biological son but rather his stepson. The applicant indicated that he was committed to taking care of the child. The applicant provided a copy of a report dated 18 March 2019 from a paediatrician [about] [Master A], who the applicant claimed was his stepson.
The Tribunal asked the applicant if he had any documents in relation to his marriage. The applicant indicated that he did not have the marriage certificate with him for the hearing. He claimed that he had lived with his wife for one year and he provided a number of pictures to the Tribunal showing himself and who appeared to be his partner and stepson. He confirmed that his stepson and wife were Australian citizens. He explained that his wife knew about his situation and that she also got stressed. He indicated if he returned to Vietnam his wife and child may join him but that may mean a worse situation for him in terms of finances, and his stepson’s situation required that he would also need to have treatment available to him.
In respect to the above, the Tribunal makes the following findings.
The Tribunal accepts that, if the applicant’s student visa was cancelled, he may face some hardship.
The Tribunal accepts that, if the applicant’s student visa was cancelled, he will likely feel that he wasted three years of his youth and his time and money without achieving anything and that he had lost his chance or opportunity to achieve a good education and an opportunity to work and live in a beautiful country. However, the applicant did come to Australia to study a postgraduate course and he did not achieve the purpose for which he was granted a student visa. Accordingly, the Tribunal gives low weight to the applicant’s concerns that he feels that he wasted three years of his youth and his time and money without achieving anything and that he had lost his chance or opportunity to achieve a good education and an opportunity to work and live in a beautiful country.
The Tribunal accepts that, if the applicant’s student visa was cancelled and he is required to return to Vietnam, the applicant would no longer be in Australia with his brother. As he admitted, the applicant’s brother is now over 18 years of age and is studying in Australia. The Tribunal does not accept that there is an ongoing need for the applicant to be in any sort of guardianship arrangement in respect to his brother. Accordingly, the Tribunal places no weight on the applicant’s concerns in this respect.
The Tribunal accepts that the applicant made an approach to Victoria University expressing an interest to study at Victoria University and that he continued to study in the library even though he was not enrolled. However, the Tribunal does not accept that this information is relevant to the issue of the degree of hardship that may be caused to the applicant if the applicant’s student visa was cancelled. Accordingly, the Tribunal places no weight on the applicant’s concerns in this respect.
The Tribunal does not accept the applicant’s claim that he is married to an Australian citizen. The applicant’s alleged spouse did not attend the hearing. The applicant did not provide a marriage certificate. The only evidence the applicant provided in support of his claim that he was married were four photographs that he claimed showed that one of the women in the photographs was his spouse. The applicant provided very little other information in support of his claim that he was married, let alone to an Australian citizen who has a child of whom the applicant is not the biological father. Accordingly, the Tribunal does not accept the applicant’s claim that he is married to an Australian citizen and places no weight on the applicant’s claims in this respect.
The Tribunal does not accept the applicant’s claim that he is the stepfather of [Master A], or that the applicant is in any kind of parental relationship with [Master A], a young child who has been provided a diagnosis of [Medical Condition 1]. There is no documentary evidence supporting the applicant’s claim in this respect. The Tribunal does accept that there is a report dated 18 March 2019 from [the paediatrician] about [Master A] requesting access to the National Disability Insurance Scheme. However, there is no reference at all to the applicant in the report dated 18 March 2019. The applicant indicated the four photographs showed that the child in the images was [Master A]. The Tribunal has no other evidence that can establish whether or not in fact the child in the photographs is [Master A]. The Tribunal does not accept that the photographs prove the applicant is in any kind of parental relationship with the child in the photographs. Accordingly, the Tribunal does not accept the applicant’s claim that he is the stepfather of [Master A], or that the applicant is in any kind of parental relationship with [Master A], a young child who has been provided a diagnosis of [Medical Condition 1] and places no weight on the applicant’s claims in this respect.

In all the circumstances, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
Past and present behaviour of the applicant towards the Department
There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.
Whether there would be consequential cancellations under s.140
As indicated above, the applicant claimed he was married and had a stepson. These issues are dealt with above. The applicant does not have any dependents on his student visa who would be affected if his student visa was cancelled.
Accordingly, the Tribunal places no weight on this information in the applicant’s favour.
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
The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that he will have limited options to apply for further visas in Australia.
The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to Vietnam.
The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.
The Tribunal places low weight on this information 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
The Tribunal asked the applicant if he feared anything in returning to Vietnam. In response the applicant indicated he had no fear. However he indicated that he had a lot of worries.
In consideration of the above, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.
Any other relevant matters
When the Tribunal asked the applicant whether there were any other relevant matters he wished to raise, he indicated that he wanted to thank the Tribunal for the opportunity to hear him, no matter what the result was. He wanted to thank Australia because he learned a lot of things especially in the hearing. No other relevant matters were put to the Tribunal.
Conclusion
The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 17 July 2016.
The Tribunal finds that the applicant has not been enrolled in a registered course of study since 28 February 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

100. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.
101. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
102. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Joseph Lindsay

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.

[2019] AATA 4643

19 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction