Nguyen (Migration)

[2019] AATA 2885

Nguyen (Migration) [2019] AATA 2885 (15 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tran Van Anh Nguyen

CASE NUMBER:  1727495

HOME AFFAIRS REFERENCE(S):           BCC2017/3096344

MEMBER:Dr Colin Huntly

DATE:15 February 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 (Student) visa.

Statement made on 15 February 2019 at 12:23pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant ceased enrolment – obtaining legal representation – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 116, 359, 360, 363
Migration Regulations 1994, Schedule 8; Condition 8202

CASES

Hasran v MIAC [2010] FCAFC 40    

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant was not represented in relation to the review by a registered migration agent.

3. The applicant was granted a subclass 573 Student (Temporary) (class TU) Higher Education Sector visa on 20 May 2014.  She travelled to Australia on 8 June 2014.

4. The delegate cancelled the visa on the basis that the applicant had not been enrolled in a course of study in a registered course from 12 September 2016, thereby breaching condition 8202(2) of the grant of the visa.

5. At the time of his application for review, the applicant provided the Tribunal with a copy of the delegate’s decision record, dated 29 November 2016. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

6. At the time of her application for review, the applicant provided the Tribunal with a copy of the delegate’s decision record, dated 3 November 2017. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

7. By letter dated 23 January 2019, the Tribunal invited the applicant, pursuant to s.359 of the Act, to provide written information about his enrolment status in a course of study in a registered course between 12 September 2016 and 17 October 2017.  The invitation was sent to the applicant at the last address provided in connection with the review and advised that:

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information.  You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

8. The information was required to be provided before 6 February 2019.

9. On 6 February 2019, the Tribunal received an email message from the applicant in the following terms:

   I would like to ask for your permission to extend the due dates for my application. This is an extremely important and complicated situation to me. I would like to find a lawyer for me and I am struggling with my financial at the moment. It would be grateful if I could have more time to solve it out. I will attach more evidence that relates to me. Thank you for your kindness and your understanding.

10. On 7 February 2019 the Tribunal replied to the applicant in the following terms:

    The Tribunal has received your request for an extension of time in which to answer its invitation to respond dated 23 January 2019.

    Before making a decision, the Tribunal asks what specific steps you have taken to obtain legal advice or representation? Dates and names of agents and lawyers you have approached with copies of any email requests would be particularly helpful.

    Your comments or response should be received by 14 February 2019.  If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

11. On 14 February the applicant replied to the Tribunal by email in the following terms:

    I would like to attach my lawyer letter about my situation. I would like to attach more evidence but we were having Lunar New Year in Vietnam so my parents could not get any document approved by the administration. May I have some more extention to get more evidence to be done? Thank you for your kindness and understanding.

12. Attached to this email message was a copy of a “To Whom It May Concern” letter, written by an Australian legal practitioner.  The Tribunal noted that no representatives had been appointed by the applicant in connection with the application.  The Tribunal contacted the legal practitioner and determined that he had no instructions to act in connection with the application and was unaware that his “To Whom It May Concern” letter was being used for the above purposes.  Accordingly, the Tribunal finds that it can place no weight on the letter in question insofar as the extension request is concerned.

13. The Tribunal thereafter determined that the applicant’s request for an extension of time in which to respond to its invitation for the applicant, pursuant to s.359 of the Act, to provide written information about her enrolment status in a course of study in a registered course between 12 September 2016 and 17 October 2017 was not well founded.  On this basis, the Tribunal refused the applicant’s request for an extension of time, and has proceeded to make a decision on the review without taking any further action to obtain the information

14. As at the date of this decision, the applicant has not provided additional information in response to the foregoing invitation.  In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[1]  Accordingly, the Tribunal has proceeded to determine the application on the basis of the available information.

    [1]         Hasran v MIAC [2010] FCAFC 40.

15. 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

16. 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.

    Does the ground for cancellation exist?

    Did the applicant comply with Condition 8202?

17. 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).

18. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a course of study in a registered course after her enrolment in a Bachelor of Health Science degree program at Edith Cowan University was cancelled on 12 September 2016.  This occured following a notification by the applicant to the education provider that she had ceased her studies. 

19. The Tribunal has had regard to the information in the delegate’s decision, namely, the applicant’s Provider Registration and International Student Management System (PRISMS) record, which confirms that the applicant was not enrolled in a course of study in a registered course between 12 September 2016 and 17 October 2017. 

20. The applicant has provided no information to suggest that, at the relevant time, she was enrolled in a course of study in a registered course.

21. The Tribunal notes that the applicant arrived in Australia on 8 June 2014 on a subclass 573 Student (Temporary) (class TU) Higher Education Sector visa.  The applicant remains in Australia at the date of this decision.

22. The Tribunal notes the following information from the delegate’s Decision record:

    The purpose for which the visa was granted ended on 12 September 2016 which is the date the visa holder’s enrolment in the Higher Education Sector course was cancelled.

23. On the basis of the foregoing information, the Tribunal finds that the applicant was not enrolled in a registered course of study or training between 12 September 2016 and 17 October 2017. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

24. 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 Procedural Instruction (PI) ‘General visa cancellation powers’.

25. The Tribunal notes that the applicant did raise some matters relating to hardship that might be the reason why the breach of the applicant’s visa conditions referred to above occurred.  In particular, the Tribunal notes that the applicant provided information to the delegate by way of an email dated 24 October 2017 in response to the Notice of Intention to Consider Cancellation of the visa, in the following terms:

    My parents save me enough money for me to pay for the next two courses but because I was too subjective and trusted so I was cheated by a lawyer forging the money that I has set aside to pay tuition fees. I was puzzled and I did not know what to tell my parents about how much I was cheated. I did not dare talk to anyone about it nor dare to tell people how I was cheated by others. He threatened me because he was afraid I would sue him for fraud. He stated that he would not have any trouble if I sued him because he was a lawyer in Australia and he had Australian citizenship and I was just an ordinary student. Since I have given all my money to him and his group they have never told me what have they done and what steps they have prepared for my documents.

26. The Tribunal notes that the above information was referred to in the delegate’s record of decision which was provided to the Tribunal by the applicant together with her application for review.  The Tribunal further notes that this information was given a little weight by the delegate when considering whether or not to exercise the discretion not to cancel the visa.

27. The Tribunal finds that the applicant has had ample opportunity to seek legal advice and assistance in connection with the matters raised by her on 24 October 2017. The Tribunal further finds that the applicant has had ample opportunity to report the matters raised in her email of that date to the delegate to the relevant authorities. Tribunal has no information before it to suggest that the applicant has pursued this matter with the relevant officials. Accordingly, the Tribunal places no weight upon this information in connection with the circumstances in which the ground for cancellation arose, namely her failure to continue to be enrolled in a complying course of study.  The Tribunal further notes that according to the PRISMS record referred to in the delegate’s record of decision, the circumstances within which the applicant failed to comply with the requirements of the visa, (namely; continuing to be enrolled in a registered course of study) arose because the applicant herself notified the education provider that she was not continuing with that course of study.  Accordingly, the Tribunal finds that the applicant’s failure to comply with the requirements of her visa arose as a result of the applicant’s own discontinuance notification to her education provider.  While this explains how she came to be an enrolled in a registered course of study on 12 September 2016, it provides no insight about the circumstances in which she continued to be non-compliant with her Visa requirements after that date.

28. The Tribunal notes that the applicant did engage in courses of study in Australia prior to 12 September 2016.  The Tribunal finds, therefore, that the purpose of the applicant’s travel to Australia was to engage in a course of study in a registered course.  However, the Tribunal also notes that the applicant has subsequently failed to satisfactorily remain enrolled in a course of study in a registered course since that time.  The Tribunal further notes its finding above, that the applicant was not enrolled in a registered course of study or training between 12 September 2016 and 17 October 2017.  The Tribunal, therefore, finds that the applicant has not demonstrated a compelling need to remain in Australia.

29. The Tribunal also notes that the applicant’s subsequent period of non-compliance with her visa conditions has been substantial and the breach is, therefore, significant.

30. The Tribunal places some weight on the applicant’s compliance with her visa conditions prior to 12 September 2016, but the Tribunal finds that this compliance does not outweigh the applicant’s non-compliance with her visa conditions after 12 September 2016.

31. As the applicant has not provided any additional information to either the Department or the Tribunals, there is no additional information before the Tribunal to suggest that the applicant would face any particular hardship (such as financial, psychological, emotional or other hardship) as a consequence of the visa being cancelled.  Accordingly, the Tribunal finds that the applicant would not face any particular hardship as a consequence of the visa being cancelled.

32. The Tribunal notes that the information provided by the applicant about the circumstances of his non-compliance with her visa conditions, is vague lacking in appropriate detail and corroborating evidence. The Tribunal further notes that the applicant has not taken genuine steps to provide further information to the Tribunal in response the Tribunal’s invitation to so do.

33. The applicant has no family members in Australia attached to her visa who might be affected by a decision about whether to cancel the visa.

34. The applicant has provided no information regarding international obligations the Tribunal would need to consider if the visa is cancelled or whether there would be a breach of Australia’s nonrefoulement obligations.

35. The Tribunal notes that the decision to cancel a visa pursuant to s.116 of the Act is discretionary.  On the basis of the foregoing analysis and findings, the Tribunal finds that the considerations in favour of cancelling the visa are not outweighed by the considerations in favour of allowing the visa to stand.

    DECISION

36. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 (Student) visa.

    Dr Colin Huntly
    Member