NGUYEN (Migration) - [2019] AATA 3972

NGUYEN (Migration) [2019] AATA 3972 (19 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr DUC SON NGUYEN
CASE NUMBER:  1705734
HOME AFFAIRS REFERENCE(S):           BCC2016/3724402
MEMBER:Melissa McAdam
DATE DECISION SIGNED:  19 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant's Class TU visa
Statement made on 19 June 2019 at 1:48pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in course – English proficiency – reliance on interpreter – no compelling reason to stay in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140
Migration Regulations 1994 (Cth), cls 572.223, 572.231

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 22 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant's Subclass 573 Student (Temporary) (Class TU) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The applicant was represented in relation to the review by his registered migration agent.
The delegate cancelled the visa on the basis that she was satisfied the applicant had not complied with a condition of the visa. That condition was Condition 8516 – the visa holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant’s Student visa was granted on 23 September 2014.
NOICC
On 3 March 2017 the delegate sent a Notice of Intention to Consider Cancellation of the applicant’s Student visa (NOICC), under s.116 of the Act. In the notice the delegate set out Criteria 573.231 and 573.223 (1A)
573.231
If subclause 573.223(1A) does not apply:
(a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
(b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:
(i) made under regulation 1.40A; and
(ii) in force at the time the application was made.
eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:
(a) the applicant is enrolled in a principal course of study for the award of:
(i) a bachelor’s degree; or
(ii) a masters degree by coursework;
(b) the principal course of study is provided by an eligible education provider;
(c) if the applicant proposes to undertake another course of study before, and for the
purposes of, the principal course of study:
(i) the applicant is also enrolled in that course; and
(ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.
573.223 (1A)
If the applicant is, and was,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NGUYEN (Migration)

Details

AGLC: NGUYEN (Migration) [2019] AATA 3972
Case: [2019] AATA 3972
Decision Date: 19 June 2019

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr. Nguyen, against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the cancellation of his Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa. The visa had been cancelled by the Department of Home Affairs on the grounds that Mr. Nguyen was not enrolled in a course at the required level and had failed to maintain enrolment in a higher education course.

The primary legal issues before the court were whether the Tribunal erred in finding that Mr. Nguyen was not genuinely or actively pursuing his studies in Australia, and whether the Tribunal correctly exercised its discretion in affirming the cancellation of his visa. Specifically, the court had to consider if Mr. Nguyen had a compelling reason to remain in Australia, the extent of his compliance with visa conditions, and the degree of hardship that cancellation might cause.

The Tribunal found that while Mr. Nguyen had provided evidence of past English language courses and a completed Diploma of Business Administration, he was unable to demonstrate actual knowledge of his current Advanced Diploma of Business course, despite claiming to attend classes. This led the Tribunal to conclude that he was not genuinely or actively engaged in his studies. Furthermore, the Tribunal considered that Mr. Nguyen had not presented any compelling need to remain in Australia, viewing his desire to obtain a higher degree for future career advancement in Vietnam as a personal aspiration rather than a compelling reason for continued presence. The Tribunal also noted Mr. Nguyen's failure to maintain enrolment at the required study level as a fundamental breach of his student visa conditions.

The court affirmed the Tribunal's decision. It was held that the Tribunal's findings that Mr. Nguyen was not actively studying and lacked a compelling reason to remain in Australia were open to it on the evidence. The Tribunal's assessment of the applicant's submissions regarding his ties to Vietnam, including family responsibilities and future employment prospects, did not disclose any error of law. Consequently, the Tribunal's exercise of discretion in affirming the visa cancellation was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 13 June 2019 the applicant submitted the following written information to the Tribunal:i.An offer of employment from the Director of Ngoi San Xinh Co Ltd., undated, offering the applicant the position of ‘Section Manager’ at the company, to start in February 2023, at a salary of VND 45,000,000/month. The applicant is asked to sign and return a copy of the letter if he chooses to accept the offer. ii.An Overseas Student Confirmation of Enrolment (CoE) to the applicant, from the Sydney School of Business and Technology (SSBT), for an Advanced Diploma of Business, starting 14 January 2019 and finishing 15 December 2019.iii.A Certificate from the Kingsway Institute certifying that the applicant completed a course in General English, Elementary Level, in June 2016. iv.A Certificate from the Kingsway Institute certifying that the applicant completed a course in General English, Elementary Level, in September 2015. v.A Certificate from the Metro English College certifying that the applicant was enrolled in a course in General English, Elementary Level, in September 2017. vi.A Statement of Attainment from Barton International College stating that the applicant completed a course in General English, Elementary Level, in January 2017. vii.An Offer and Acceptance of Enrolment to the applicant from Group Colleges Australia, dated 23 May 2019, for a Bachelor of Business at UBSS Sydney College from January 2020 to December 2022.viii.A Course Completion Letter from SSBT stating that the applicant completed a Diploma of Business Administration at the school on 6 January 2019.ix.A Certificate from SSBT, issued on 27 March 2019, certifying that the applicant completed a Diploma of Business Administration. x.The applicant’s record of results from SSBT for the Diploma of Business Administration course.xi.A Vietnamese Land Use Rights Certificate, and related documents, in the applicant’s name.xii.The applicant’s Vietnamese Birth Certificate.xiii.The applicant’s mother’s Vietnamese Birth Certificate.xiv.A typed letter in English from the applicant which includes the following:… First of all, I would like to elaborate on my tie with my home country from family perspective. As a son in the family, I am responsible for taking care of my mother, especially at this time, when she is getting older and her health is deteriorating each day. This is not only a cultural tradition of an Asian country like Vietnam, but also the bonding between me and my mother. I am worrying every day, when I am far away from her and cannot take as good care of her as I should have. For an elder to live alone without anyone to count on, she is still encouraging me day by day and said the it is hope that keeps her strong. She can’t wait for the day I go back to her, with an Australian degree successfully achieved as planned from the beginning, and I would never let her down. In addition, my family has properties that will be passed to me as inheritance. I will have to go back to Vietnam and take care of these properties before and after they are passed to me. I am attaching these property certificates as proof.Secondly, I have previously got working experience in Vietnam. My company works in petroleum sector. I enjoyed this job and found my passion here. As a matter of fact, the motivation for my decision to study abroad is to progress in my career. With the improved English level after years of studying in Australia, as well and an Australian degree, I am confident that I have more advantages than other colleagues and will be promoted after coming back. Although I value the excellent education system of Australia and the worldwide recognition of Australian qualification, I am aware of the fact that the job market here is competitive especially for in international graduate like me. It would be extremely challenging to find a good job that pays off my investment in my study because I have to compete with local people. Thirdly, I love my experience here as an international student, but to work here in the long term is a totally different story that I have never thought of. I don’t find myself really fit in here, both in terms of culture and way of life. I am making the best out of my opportunity to study here in Australia, but I am also hoping that I will finish my study soon and go back to my family, continue with my chosen career there and support my family, which I cannot do during the time spent abroad.Finally, I am been offered a job with my old company in Vung Tau, Viet Nam. I am completing my Bachelor course at GCA in December 2022 and I will come back to start my job offered in February 2023. My company name is Ngoi Sao Xinh Co. Ltd, Vietnam and my offered position is a management position. The Pay rate is VND 45,000,000 monthly, which is approximately $31,000/year, which is a high income given low cost of living in Vietnam. As you can see from my job offer attached, my future position is Manager level, which is perfect for my qualification and my skills accumulated during my study in Australia. I am very excited for this position and I am confident that I will do it well, because I have experience in the past, knowledge, management skills and passion. I believe coming back to Vietnam will be a milestone in my career, and I cannot wait to contribute to my company’s growth and success. …CONSIDERATION OF CLAIMS AND EVIDENCE

Decision

Reasons for decision

On 8 March 2017 the applicant wrote to the Delegate stating that he applied for an English Course, Diploma of Management and Leadership, and Bachelor of Business, from GCA. He maintained the Bachelor of Business as his principle course. He attached Confirmation of Enrolments (CoEs) for each course. The General English CoE covered a period of study from 6 March 2017 to 25 August 2017. The Diploma of Management and Leadership CoE covered a period of study from 3 October 2017 to 20 September 2019. The Bachelor of Business CoE covered a period of study from 20 January 2020 to 2 December 2022.Delegate’s Decision On 22 March 2017 the delegate cancelled the applicant’s visa. The delegate referred to information that the applicant’s Bachelor of Business course was cancelled on 5 February 2016 so that the applicant was no longer enrolled in a Bachelor or Master’s degree. The delegate found that the applicant was not enrolled in a higher education level principal course between 5 February 2016 and 7 March 2017. The delegate noted that the applicant’s Bachelor of Business course was not due to commence until 20 January 2020 which was past the expiry date (15 March 2019) of the applicant’s Student visa. The delegate found that the applicant had not undertaken any higher education degree in Australia. The delegate noted that if visa holders are unable to study at the visa subclass level they were approved for, they are required to change subclasses to reflect the level of study they are completing. The delegate found that the applicant did not do this. Information to the TribunalPre-Hearing Submission On 23 May 2019 the applicant submitted the following written information to the Tribunal:i.A Statement of Attainment from Barton International College stating that the applicant completed a course in General English, Elementary Level, in January 2017. ii.An Overseas Student Confirmation of Enrolment (CoE) to the applicant, from the Sydney School of Business and Technology (SSBT), for an Advanced Diploma of Business, starting 14 January 2019 and finishing 15 December 2019.iii.A Course Completion Letter from SSBT stating that the applicant completed a Diploma of Business Administration at the school on 6 January 2019.iv.A Certificate from SSBT, issued on 27 March 2019, certifying that the applicant completed a Diploma of Business Administration. v.The applicant’s record of results from SSBT for the Diploma of Business Administration course.vi.A Certificate from the Kingsway Institute certifying that the applicant completed a course in General English, Elementary Level, in September 2015. vii.A Certificate from the Metro English College certifying that the applicant was enrolled in a course in General English, Elementary Level, in September 2017. viii.An Offer and Acceptance of Enrolment to the applicant from Group Colleges Australia, dated 23 May 2019, for a Bachelor of Business at UBSS Sydney College from January 2020 to December 2022.Tribunal hearing

Ratio Decidendi

Legal Principle Established

On the basis of the information before it 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 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 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 is satisfied that the applicant’s original purpose in travelling to and staying in Australia was to study. The applicant provided evidence he completed a Diploma of Business Administration at the beginning of this year, is currently studying an Advanced Diploma of Business, and is enrolled in a Bachelor of Business to commence next year. He also gave evidence he plans to return to Vietnam when he has obtained a Bachelor degree in Australia. The Tribunal accepts the applicant completed a nine-month Diploma of Business Administration between April 2018 and January 2019, in addition to the several General English courses he completed over his initial several years in Australia. In regards to his current study of an Advanced Diploma of Business the applicant was unable to demonstrate actual knowledge of the course, despite claiming to be attending classes two days per week since its commencement. He was not able to name the course or any of the subjects he was currently studying. The Tribunal therefore does not consider he is pursuing his studies of the course in any engaged sense. The Tribunal is not satisfied he is presently remaining in Australia to actively study. The applicant has also not presented any compelling need to remain in Australia. He spoke of wanting to obtain a higher degree so that he could obtain work at a higher salary in Vietnam, which will further assist him to support his mother in Vietnam. He also stated that he had nine years’ work experience which assured him of obtaining work in Vietnam on return. While the Tribunal accepts that a higher degree could readily lead to work options in Vietnam attracting higher salaries, it does not consider it a compelling factor for the applicant’s continued stay in Australia.· the extent of compliance with visa conditionsThe applicant failed to maintain enrolment at study at the level required by the conditions of his Student Visa which is a fundamental breach of a student visa and weighs against the applicant in this case.· degree of hardship that may be caused (financial, psychological, emotional or other hardship) When asked about hardship the applicant spoke of wanting to study quickly in Australia so he could return to Vietnam soon to be with his mother and to work for his former company. He also stated he would receive a lower salary than the salary he would receive if he returned with a degree qualification. He complained of having wasted is time in Australia if he does not obtain a degree qualification here.