NGUYEN (Migration)

[2019] AATA 2720

NGUYEN (Migration) [2019] AATA 2720 (5 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr THANH DAT NGUYEN

CASE NUMBER:  1700699

HOME AFFAIRS REFERENCE(S):           BCC2016/3903154

MEMBER:Melissa McAdam

DATE:5 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 April 2019 at 9:40am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – consent from applicant for tribunal to decide on information before it – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140
Migration Regulations 1994, Schedule 2, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 January 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 delegate cancelled the visa on the basis that the applicant had not complied with Condition 8202 of his visa in that he was not enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On 20 December 2016 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his Student visa, inviting him to comment on a possible breach of condition 8202, which required him to be enrolled in a registered course. The Delegate wrote that the applicant appeared to have not been enrolled in a registered course of study since 23 June 2016.

4. On 23 December 2016 the applicant’s Agent sent an email message to the Department requesting an extension of time to after 15 January 2017 in order to obtain psychological reports for the applicant.  The Agent stated the applicant is suffering from psychological problems and currently seeking treatment from a psychologist. The Agent attached a doctor’s certificate from Dr Binh My Pham dated 22 December 2016 stating that the applicant is suffering from “Anxiety Depression” and is unfit for work between 12/12/16 and 23/12/16.

5. The Delegate notified the applicant’s Agent that an extension until 6 January 2017 was granted for the applicant to provide a response to the NOICC.

6. There is no record of any further response from the applicant being received by the Department.

7. The Delegate cancelled the applicant’s visa on 9 January 2017.

   Delegate’s Decision

8. The applicant submitted a copy of the Delegate’s decision to the Tribunal.

9. The Delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course.  The delegate found that the applicant has not been enrolled in a registered course of study since 23 June 2016.

10. The issue in this case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

    Information to the Tribunal

11. On 11 January 2019 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on Monday, 25 March 2019.

12. On the afternoon of Friday, 22 March 2019, the applicant’s Agent wrote to the Tribunal asking for the hearing to be postponed on the “basis of a medical report” from Dr Albert Nguyen, which stated that the applicant “is unable to attend his work from Thursday, 21 March 2019 to Monday, 25 March 2019 inclusive due to a medical illness”.  No other details were provided.  The Tribunal agreed to the postponement and rescheduled the hearing to 4 April 2019.

13. On 1 April 2019 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review on the information before it. This matter has therefore been determined on the evidence available to the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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?

15. 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).

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

17. As set out in the NOICC to the applicant, his education records show that he was not enrolled in a registered course of education since 23 June 2016.  The applicant has not submitted any evidence to indicate that the records are incorrect, or that he has been enrolled in a registered course of education since 23 June 2016. On the information before it, the Tribunal is satisfied that the applicant was not enrolled in a registered course of education in Australia since 23 June 2016.

18. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

19. 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’.

    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

20. The applicant’s initial stated purpose for travel and stay in Australia was to study. There is no information about the existence of any other purpose.  The Tribunal therefore accepts that the applicant’s purpose for travel to and stay in Australia was study. The applicant has ceased studying and there is no indication of any compelling need for the applicant to remain in Australia.  The Tribunal considers that this matter does not favour revocation of the applicant’s visa cancellation.

    The extent of compliance with visa conditions

21. There is no information before the Tribunal that the applicant has not complied with his other visa conditions. The Tribunal therefore gives this circumstance some weight in his favour.

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

22. The applicant has not submitted any evidence that the cancellation will cause him any hardship. The Tribunal observes that the applicant will need to depart Australia if he is unable to acquire another visa.  There is nothing before the Tribunal to suggest this will cause the applicant hardship. The Tribunal considers this matter does not favour revocation of the visa cancellation.

    Circumstances in which ground of cancellation arose.

23. In his initial request for an extension to respond to the NOICC, the applicant’s Agent  stated that the applicant suffered from psychological problems and was seeking treatment from a psychologist. The Agent referred to an intention to obtain psychological reports for the applicant.  A doctor’s letter stating the applicant was unfit for work for a twelve day period because of “anxiety depression” was the only information submitted. No psychological reports or further information about the applicant’s condition was submitted.

24. The only information provided to the Tribunal was the applicant’s request for a hearing postponement based on a doctor’s letter he “had a medical illness” and was unfit for work for several days.

25. The applicant has not provided any actual explanation or details of why he ceased to be enrolled in a registered course of education. He has also not proffered any reason why the visa cancellation should be revoked.  Given the lack of available information, the Tribunal does not consider the circumstances in which the applicant ceased being enrolled, favour the revocation of the visa cancelation.

    The past and present behaviour of the visa holder towards the department

26. There is no information before the Tribunal that the applicant’s behaviour towards the department or the Tribunal has been problematic. The Tribunal therefore gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

27. There is no indication that another person’s visas has been, or will be, cancelled as a result of the cancellation of the applicant’s visa. The Tribunal therefore finds this circumstance  does not support the revocation of the visa cancellation.

    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

28. The applicant will need to depart Australia or obtain another visa, before the expiry of his bridging visa. If he does neither of these things he would become unlawful and be liable to detention. However detention is not an inevitable outcome as the applicant has the ability to  comply with Australia’s laws and depart Australia if required.  On the information before the Tribunal, it does not consider indefinite detention is a possible consequence of the cancellation. There are also a limited number of visa applications the applicant is able to make without the Minister’s intervention.  The Tribunal therefore does not consider this matter favours revocation of the cancellation, particularly when viewed in the light of the seriousness of the applicant’s breach.

    Whether any international obligations would be breached as a result of the cancellation

29. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

30. There is no indication of other relevant matters before the Tribunal.

31. The Tribunal finds that, weighing up the applicable considerations in this application, the material before the Tribunal supports the cancellation of the applicant’s visa.  Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Melissa McAdam
    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.