Nguyen (Migration)

[2019] AATA 2733

Nguyen (Migration) [2019] AATA 2733 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huy Hoang Nguyen

CASE NUMBER:  1726670

HOME AFFAIRS REFERENCE(S):           BCC2017/2937336

MEMBER:Joseph Lindsay

DATE:3 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 April 2019 at 5:12pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – unlawful status – inability to pay course fee – poor English language skills insufficient to undertake higher education studies – decision  under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 140, 359AA
Migration Regulations 1994 (Cth), Schedule 8, conditions 8202(2)(a), 8531

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 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 delegate cancelled the visa on the basis that the applicant failed to remain in a registered course of study and breached condition 8202(2)(a) of his student 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.

3. The applicant attended the hearing before the Tribunal on 21 March 2019. The applicant was not represented and was assisted by an interpreter.

4. 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

5. 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?

6. 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).

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

8. In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department dated 24 October 2017 indicating that he had not been enrolled in a registered course of study since 26 February 2017. In his response to the Tribunal, the applicant agreed that he had not been enrolled in a registered course of study since 26 February 2017.

9. 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).

10. The Tribunal also spoke to the applicant about information before the Tribunal that he was not on a Bridging Visa E and that he had been unlawful since his student visa was cancelled on 24 October 2017 – some 18 months - and that this circumstance may cause the Tribunal to find that the applicant also breached condition 8531 of Schedule 8 to the Regulations (The holder must not remain in Australia after the end of the period of stay permitted by the visa). The Tribunal put this information to the applicant in accordance with s.359AA of the Act. The applicant did not want an adjournment or more time in which to respond.

11. The Tribunal asked the applicant why he did not have a Bridging Visa E and he indicated that he did not know why he did not have a Bridging Visa E. Rather, the applicant indicated that he assumed he had a Bridging Visa E because he had applied to the Tribunal and also that his friend told him he had a Bridging Visa E.

12. When the Tribunal asked the applicant if he had checked Visa Entitlement Verification Online (VEVO) himself to see if he had a Bridging Visa E, he indicated that he did not know how to check VEVO.

13. The Tribunal put to the applicant that the Tribunal would reasonably expect that he would know how to log on to VEVO to check his visa status. The applicant then indicated he had previously logged on to VEVO before.  

14. Accordingly, the Tribunal finds that the applicant has been unlawful since the delegate cancelled his student visa on 24 October 2017 – some 18 months ago - and in these circumstance the Tribunal finds that the applicant breached condition 8531 of Schedule 8 to the Regulations (The holder must not remain in Australia after the end of the period of stay permitted by the visa).

    Consideration of the discretion to cancel the visa

15. Having found that the applicant has not complied with conditions 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’.

    Student history and PRISMS record

16. The Tribunal asked the applicant about his student history. In response, the applicant indicated that he had been in Australia since 2013 and that he had completed an English language course. He also indicated he had enrolled in courses in business, management and hospitality but he could not remember what type of courses they were (i.e. certificate, diploma, bachelor degree) because they were so long ago. 

17. The Tribunal considered the applicant’s Provider Registration and International Student Management System (PRISMS) record and indicated to the applicant that what he had told the Tribunal about his student history appeared to be broadly true. The applicant’s student history as he told the Tribunal was generally reflected in the applicant’s PRISMS record. The Tribunal finds that there is no adverse information in the applicant’s PRISMS record and there was no need to put the information in the PRISMS record to the applicant in accordance with s359AA of the Act.

    Applicant’s English skills and abilities

18. One of the more significant questions for the Tribunal is whether the applicant would be reasonably able to successfully study and complete a higher education course in Australia that was conducted in English if the applicant was to hold a 573 student visa. 

19. The Tribunal notes that at the hearing the applicant submitted documentation from the Melbourne Institute of Technology dated from 2014 indicating that he had passed a 10 week English language course and was found to be ‘competent’ in English in regard to grammar, speaking, reading, writing and listening comprehension.

20. When the Tribunal questioned the applicant’s English language abilities, he indicated that whilst he had passed an English language course in 2014, his English language abilities had actually worsened over the course of the ensuing five years.

21. An example of the applicant’s English language difficulties was during the hearing when the applicant explained that he did not give any documents to the Tribunal regarding his claim that he could not pay his course fees because his parents’ business in Vietnam went bankrupt in 2017.

22. The Tribunal then asked the applicant to read one sentence from the hearing invitation emailed to the applicant on 14 March 2019 that was in bold type and stated:

    We request that any additional documents or information that you may wish to rely on during the hearing be provided to us by 27 March 2019.

23. The applicant read the sentence out aloud in English, but struggled to do so. When asked if he understood what this sentence meant, he indicated that he did not understand at all what the sentence meant.

24. The Tribunal indicated to the applicant its concern that, given the applicant’s admissions that his English language skills had deteriorated over the five years he had been in Australia, and his apparent lack of action to take steps to improve his English language skills over the five years he has been in Australia, that the Tribunal may find that the applicant would not be able to successfully undertake and complete a higher education course of any kind even if he had a student visa.

25. In response, the applicant indicated that if he got his student visa, he would undertake another English class and that would help him.

26. In considering the above the Tribunal finds that the applicant’s poor English language skills are such that the Tribunal is not convinced that the applicant would be able to successfully complete a higher education sector course should he get his student visa.

    The circumstances in which the ground for cancellation arose

27. As indicated above, the applicant indicated that the reason why he stopped studying and was no longer enrolled was because he could not pay his course fees. The applicant indicated that he could not pay his course fees because his parents’ business in Vietnam went bankrupt in 2017.  However, he indicated that he had no documents at all associated with his claim that his parents’ business in Vietnam went bankrupt in 2017.

28. When the Tribunal asked what he did when he became aware that he could not pay his course fees, he indicated that he did not do anything and just assumed he could stop studying and then resume studying when he could pay his fees. He indicated that he had recently spoken to his parents who indicated that everything was now okay and that he could pay his course fees.

29. When the Tribunal asked the applicant whether he contacted the Department to tell them about his problems, he said he did not.

30. When the Tribunal asked the applicant whether he contacted his course provider to tell them about his problems, he said he did not.

31. In explaining why he did not tell his course provider or the Department, he indicated that he did not know how to tell them.

32. The Tribunal put to the applicant that the Tribunal would reasonably expect that as the visa holder he would have reasonably been aware of his obligations to take proactive steps in regard to his student enrolment, including notifying his course provider and the Department of his circumstances.

33. In response, the applicant indicated that he did not think that it would matter that he did not notify his course provider and the Department of his circumstances and that it should be okay.

34. When the Tribunal put to the applicant that it may put low weight on his claims that he stopped studying because he did not pay his course fees because his parents’ business in Vietnam went bankrupt in 2017, he responded ‘yes.’

35. In considering the above, the Tribunal finds that the applicant’s claimed circumstances as to why he did not remain enrolled are not exceptional circumstances. The Tribunal finds that the applicant, as he admitted, did not take reasonable steps to manage his personal circumstances where he found that he could not pay his course fees and he did not contact his course provider or the Department to notify them of his circumstances.

36. The Tribunal gives low weight to the applicant’s circumstances as to why he did not maintain his course enrolment.

    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

37. 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

38. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202 and condition 8531. 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)

39. In response to this issue at the hearing, the applicant indicated that if his visa was cancelled he would suffer some hardship primarily because his parents and friends would look down on him because he could not successfully study in Australia, and that he felt that he would go back home as a failure.

40. The Tribunal accepts that the applicant may experience some hardship as he has described. 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

41. There is no evidence that the applicant has been uncooperative with the Department in the past. In reference to the circumstances indicated above where the applicant has apparently been unlawful for the last 18 months, there is no indication he had intended to do this because, as he indicated, he thought he had a Bridging Visa E. 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

42. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his student visa. The Tribunal places low 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

43. At the hearing, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa. The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully – which he does not currently have.

44. 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.

45. 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

46. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The only thing the applicant indicated that he feared about going back to Vietnam was that the environment in Vietnam was not as good as Australia and that he did not want his friends to look down on him because he did not succeed in Australia. 

47. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

48. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated that he wanted the Tribunal to help him to study again.

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

    Conclusion

50. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 1 November 2013, now approximately five and a half years ago, the applicant has not completed any higher education courses.

51. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 26 February 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

52. The Tribunal finds that the circumstances that led the applicant to not complete any higher education courses, as detailed above, are not exceptional circumstances. 

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

    DECISION

54. 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.