NGUYEN (Migration)

[2019] AATA 4854

NGUYEN (Migration) [2019] AATA 4854 (3 June 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TRAN THIEN KHOI NGUYEN

CASE NUMBER:  1708584

DIBP REFERENCE(S):  BCC2017/792633

MEMBER:Lynda Young

DATE OF DECISION:  3 June 2019

DATE CORRIGENDUM

SIGNED:13 November 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Where the decision record reads 3 June 2016, it should read 3 June 2019.

Lynda Young
Member

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CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TRAN THIEN KHOI NGUYEN

CASE NUMBER:  1708584

DIBP REFERENCE(S):  BCC2017/792633

MEMBER:Lynda Young

DATE OF DECISION:  3 June 2019

DATE CORRIGENDUM

SIGNED:8 August 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Where the decision record reads 3 June 2019, it should read 3 June 2019.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TRAN THIEN KHOI NGUYEN

CASE NUMBER:  1708584

HOME AFFAIRS REFERENCE(S):           BCC2017/792633

MEMBER:Lynda Young

DATE:3 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 03 June 2019 at 12:06pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – not a genuine student – no evidence – no compelling reasons – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116(1)(b), 140, 189, 198, 362B, 379A(5)
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202, Public Interest Criterion 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant’s visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), requiring the applicant to be enrolled in a registered course of study.

3.    The delegate cancelled the visa on the basis the applicant, in breach of visa condition 8202(2)(a), was not enrolled in a registered course of study after 10 August 2016, and the grounds in favour of cancellation outweighed the grounds against cancellation. The issues in the present case are whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.    By letter emailed to the applicant on 26 April 2019, the Tribunal invited the applicant to give evidence and present arguments relating to the issues in his case at a hearing on 20 May 2019 at 2:00pm. The invitation advised the applicant the Tribunal may, if he did not attend the hearing and an adjournment was not granted, make a decision on the case without taking any further action to allow or enable the applicant to appear before it.

5.    On 13 May 2019 and again on 17 May 2019, the Tribunal sent the applicant reminders by SMS about the hearing and by SMS on 20 May 2019.

6.    No response to the hearing invitation was received by the Tribunal, and no return to sender or delivery failure notice was received in response to the Tribunal’s email.  However, delivery failure notices were received by the Tribunal for each SMS message.

7.    The applicant failed to appear before the Tribunal at the scheduled hearing on 20 May 2019. Neither the applicant nor anyone on his behalf provided any documents including medical certificates, submissions, written responses to the hearing invitation or any requests for postponements to the Tribunal, at any time prior to the time of making this decision.

8.    The Tribunal is satisfied the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

9.    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

1. 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.

2. On 20 April 2017, the applicant filed with the Tribunal, his application for review of the delegate’s decision attaching, in support of his application, copies of the Notice of Cancellation and the Decision Record.

3. By letter emailed to the applicant on 20 April 2017, the Tribunal acknowledged receipt of his application and requested he provide, as soon as possible, a statement explaining why he disagreed with the decision, and any supporting material or written arguments he wished the Tribunal to consider.

4. In addition to inviting the applicant to give evidence and present arguments relating to the issues in his case at the hearing, the Tribunal’s hearing invitation of 26 April 2019 also requested the applicant provide within seven days all documents on which he intended relying in support of his case.

5. The applicant did not appear before the Tribunal at the scheduled hearing and did not give hearing evidence or present arguments. Despite the Tribunal’s requests, the applicant did not provide the Tribunal with a statement explaining why he disagreed with the decision, did not provide any documents or material supporting his case other than the Notice of Cancellation and the Decision Record attached to his application for review, and did not provide any submissions or written arguments relating to the issues in his case, or in relation to the grounds for cancellation or why his visa should not be cancelled, or at all. As a result, the Tribunal must determine the application on the evidence before it, comprised of the review application and attached documents (the notice of cancellation and the decision) and the Notice of Intention to Consider Cancellation (NOICC) dated 29 March 2017 in the Department's file.

Did the applicant comply with Condition 8202?

1. 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)

   ·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).

2. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

3. By Notice of Intention to Consider Cancellation (NOICC) dated 29 March 2017, the Department:

   a.notified the applicant it intended considering cancellation of his visa as it appeared from PRISMS records he had not been enrolled in a registered course of study since 10 August 2016, in breach of visa condition 8202;

   b.set out the matters the delegate would take into account in considering whether to cancel his visa, being the purpose of his travel to and stay in Australia , the extent of compliance with any conditions subject to which his visa was granted, the degree of hardship that may be caused to him and any family members if the visa is cancelled, the circumstances in which the ground for cancellation arose, his past and present behaviour toward the Department, the legal consequences of a decision to cancel the visa, and any other matters;

   c.invited the applicant to provide his written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why his visa should not be cancelled, the matters the delegate would take into account in considering whether to cancel his visa, and any other matter he considered relevant;

   d.notified the applicant his response would be taken into account in deciding whether to cancel his visa, and if he did not respond, the decision would be made on the information then held by the Department;

   e.outlined the consequences should the applicant’s student visa be cancelled.

4. On 19 April 2017, the delegate cancelled the applicant’s student visa, and a copy of the visa cancellation notice and delegate’s decision were emailed to the applicant. The decision set out the following:

   a.the applicant was granted a Subclass 572 Vocational Education and Training Sector student visa on 10 March 2015, with a stay period to 5 July 2017;

   b.in the visa application process, the applicant his intended purpose of travel to and stay in Australia was to study;

   c.the applicant was notified of the intention to consider cancellation on 29 March 2017 on the basis of PRISMS evidence that he had not been enrolled in a registered course of study since 10 August 2016 in breach of visa condition 8202; and invited to respond in writing;

   d.no response to the NOICC was received by the Department, and the applicant did not dispute the ground for cancellation existed or provide reasons why his visa should not be cancelled;

   e.on evidence obtained from PRISMS, the applicant had not been enrolled in a registered course of study since 10 August 2016, and had breached condition 8202(2)(a) of his visa;

   f.as the applicant was not enrolled in a registered course of study when the NOICC issued and remained not enrolled at time of decision, he was no longer in Australia in accordance with the original purpose of his visa;

   g.the extent of the applicant’s non-compliance with visa condition 8202, the only identified breach, was significant;

   h.the delegate was unaware of any particular hardship that may be caused to the applicant or his family if the visa is cancelled;

   i.there were no reasons before the delegate in relation to extenuating circumstances in which the ground for cancellation arose providing reason not to cancel his visa;

   j.there was no information before the delegate to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department;

   k.there were no dependant visa holders to the applicant’s visa;

   l.the circumstances of the case were not such that would engage Australia’s international obligations.

5. The applicant had, as at the hearing date, been on notice of the ground on which his visa was cancelled for slightly more than two years and one month and in that time, despite the Tribunal’s requests in its review application acknowledgement and hearing invitation, has failed to provide any documents or submissions supporting his application, and has not disputed the ground for cancellation existed or provided reasons why his visa should not be cancelled. The Tribunal invited the applicant to give evidence and present arguments relating to the issues in his case at a hearing. He failed to attend the hearing, and failed to give any evidence at hearing and present arguments as invited.  As the Tribunal has not had the opportunity of taking his evidence at hearing about the issues in his case, or in relation to the grounds for cancellation or why his visa should not be cancelled, or at all, the Tribunal is unable to be satisfied the applicant was enrolled in any registered course of study after 10 August 2016.

6. On the evidence before it, the Tribunal is satisfied the applicant was not enrolled in a registered course of study from 10 August 2016, in breach of visa condition 8202(2)(a).

7. Accordingly, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) exists.

8. As the 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

1. Having found the applicant had breached a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. There are no  matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion.

2. The Tribunal has had regard to the circumstances of this case, including matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

3. The applicant did not respond to the NOICC or the decision or otherwise provide the Department with any reasons why his visa should not be cancelled or address any of the PAM3 matters, which were set out in the NOICC as matters the delegate would take into account.

4. The applicant did not appear and give evidence or provide submissions at the hearing and, despite the Tribunal’s request in its application acknowledgement and hearing invitation, has not provided any documents or submissions in respect of any of the PAM3 matters or other circumstances for the Tribunal’s consideration in its exercise of the discretion to cancel the visa.

5. The PAM 3 matters are addressed in the decision. The applicant has not disputed any of the information or conclusions set out in respect of the PAM3 matters in the decision.

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

1. There is no evidence before the Tribunal to suggest that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study.

2. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study for a period of just over eight months from 10 August 2016, until cancellation.

3. Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia. That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study. Considered in that context, the Tribunal finds the applicant’s failure to be enrolled in a registered course of study for over eight months from 10 August 2016 to cancellation, is significant and weighs in favour of cancellation.

4. The Tribunal is not satisfied the applicant’s intended purpose of travel to and stay in Australia provides a compelling need to travel to and remain in Australia. Failing to be enrolled since 10 August 2016 is inconsistent with such need. Similarly, if he genuinely had compelling need, it would be reasonable to expect the applicant to have participated meaningfully in his review application, rather than not attending the hearing without explanation. The Tribunal gives this consideration weight in favour of cancelling the visa.

5. There is no evidence before the Tribunal to suggest the applicant has a compelling need to remain in Australia or that he had a compelling need to travel to Australia. The applicant's non-engagement in study for which his visa was granted since 10 August 2016 and failure to participate meaningfully in his review application satisfy the Tribunal the applicant does not have a compelling need to remain in Australia. The Tribunal gives this consideration weight in favour of cancelling the visa.

Extent of non-compliance with any conditions subject to which the visa was granted.

1. The only breach identified in the decision in respect of this consideration is the applicant’s failure to remain enrolled. Although the evidence does not satisfy the Tribunal the applicant breached any other condition imposed on his visa, he was not enrolled for slightly over eight months prior to cancellation.  The noncompliance is significant and the Tribunal weighs this factor in favour of cancelling the visa.

2. Other than a breach of condition 8202 there is no evidence before the Tribunal that that applicant has breached any other conditions of his visa. The Tribunal weighs this factor in favour of not cancelling the visa.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship).

1. The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable to detention unless that person voluntarily departs Australia or holds a bridging visa. Movement records indicate the applicant voluntarily departed Australia on 11 May 2017 with a bridging visa with no permission to return. In those circumstances, the Tribunal is not satisfied the applicant would become unlawful or liable to detention upon cancellation. The Tribunal accepts a visa holder may be prevented from being granted a further temporary visa for a period of 3 years on the basis that person may not, as a result of the cancellation, meet the public interest criterion 4013.

2. The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs in favor of not cancelling the visa

The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

1. Given the applicant did not attend the hearing and has not provided any information as to the circumstances surrounding his breach of condition 8202, the Tribunal is unable to be satisfied about the circumstances in which the ground for cancellation arose. Accordingly, the Tribunal is not satisfied there were any extenuating circumstances beyond his control that led to the applicant breaching his visa conditions. The Tribunal weights this factor in favour of cancelling the visa.

Past and present conduct of the visa holder towards the Department

1. There is no evidence before the Tribunal to suggest that the applicant’s past or present behaviour towards the Department was adverse. The Tribunal weighs this factor neither in favour nor against cancelling the visa.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

1. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Migration Act, which significantly limits the classes of visa for which he may apply onshore. The Tribunal is satisfied cancellation of the applicant’s visa would prevent him re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013 but would not, as it appears he voluntarily departed Australia on 11 May 2017 with a bridging visa with no permission to return, result in him immediately becoming unlawful and liable to detention under s189 of the Migration Act or removal under s198 of the Migration Act.

2. The Tribunal gives this consideration weight in favour of not cancelling the visa. 

Whether there would be consequential cancellations under s.140 and whether any international obligations would be breached as a result of the cancellation.

1. On the evidence before the Tribunal, there are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing before the Tribunal to suggest Australia’s international obligations, including in respect of non-refoulement and best interests of the children, would be breached as a result of the visa cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

Other relevant considerations

1. The applicant has not satisfactorily demonstrated that he is a genuine student who should have the visa reinstated because he is a genuine student interested in completing his studies. Taken together and considered as a whole, the Tribunal is satisfied the matters weighing in favor of cancellation of the visa outweigh the matters weighting against cancellation.  In circumstances where the applicant has failed to take any active role in the Tribunal’s review process or provide any supporting material or information (other than his application and attached documents) despite the Tribunal requesting he do so, the Tribunal is satisfied, in light of the centrality of enrolment to the existence and purpose of the applicant’s visa and stated purpose for his travel to stay in Australia and the applicant’s unexplained failure to be enrolled in any registered course of study for a period in excess of nine months prior to cancellation, the factors in favour of cancelling the visa outweigh those in favor of not cancelling the visa.

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Lynda Young
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.