NGUYEN (Migration)

[2019] AATA 882

NGUYEN (Migration) [2019] AATA 882 (5 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss THI HUONG NGUYEN

CASE NUMBER:  1713659

HOME AFFAIRS REFERENCE(S):           BCC2017/1199704

MEMBER:Joseph Lindsay

DATE:5 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 05 February 2019 at 10:20am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to ground for cancellation – family’s financial circumstances – victim of discrimination at study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 360, 379A
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 June 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 her 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 review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on Tuesday 5 February 2019 at 9:30am. The invitation was sent to the applicant via the email she provided to the Tribunal. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The applicant did not respond to the hearing invitation. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. Both SMS reminders appear to have not been delivered to the mobile phone number that the applicant had provided to the Tribunal. The applicant provided no other email address or mobile phone number to the Tribunal.

4. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5) of the Act.

5. No satisfactory reason for the non-appearance has been given.

6. Accordingly, the Tribunal has made the decision on the basis of the information available to the Tribunal.

7. 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

8. 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?

9. 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).

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

11. In her application for review, the applicant provided a copy of the decision record from the Department that found the applicant had not been enrolled in a registered course of study since 5 September 2016. In the response the applicant provided to the Department on 23 June 2017, she did not dispute that there were grounds for cancellation. The applicant has provided a copy of her response to the Department as part of her application to the Tribunal.    

12. 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).

    Consideration of the discretion to cancel the visa

13. 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.’

    The circumstances in which the ground for cancellation arose

14. The Tribunal notes the information the applicant provided to the Tribunal referred to the circumstances in which the ground of cancellation arose. In her response she said:

    I would like to explain my situation. During the period of not enrolling to school, I have experienced a distress period due to personal circumstance. My family is experiencing some problems which leaded to my unbalance and distress mood. In addition, during the time studying, I was the victim of discrimination which made me feel unhappy. Gradually, I decide not to talk to anyone else but just put myself in silent.

    First of all, there were some chaotic happened in my family. My parent business did not go well. They were under pressure in term of finance. Hence, they did talk to me about it and expressed their concern about the ability to keep paying my tuition fee. Consequently, I always blamed of myself for consuming a lot of money from my parents. I was thinking a lot at that time and decided to stop studying a while to get the balance. Otherwise, I can’t do anything well because I just thought about money all the time.

    Secondly, during the time studying, I did experience a period of discrimination. My English was not good at that time. Whenever I spoke, everyone looked and laughed at me. They also made fun of me. I was very lonely at that time because getting friends was not easy. In addition, I had to try a lot to keep up with other friends. However, no one wanted to support me at that time which made me stressed and uncertain.

    At the moment, everything has been better. My parent has resumed their financial capacity. In addition, after taking a break, I myself have been trying to study English and improve my English ability. I have spent hours studying at home, practicing English through internet and books. As a result, I am confident of my English and believe that I have enough capability to achieve the best outcome of studying.

15. Given that the applicant failed to attend the hearing, the Tribunal was not given the opportunity to question the applicant about her circumstances. Accordingly, the Tribunal makes the following findings:

    a.there is no evidence supporting the applicant’s claim that she was a ‘victim of discrimination’ and accordingly the Tribunal does not accept that the applicant was a ‘victim of discrimination.’  

    b.there is no evidence  supporting the applicant’s claim that her parents incurred difficulties in their business or that they could not pay the applicant’s tuition fees, and accordingly the Tribunal does not accept that the applicant’s parents incurred difficulties in their business or that they could not pay the applicant’s tuition fees.

    c.there is no evidence supporting the applicant’s claim that her circumstances led to her ceasing her enrolment in her registered course of study, and accordingly the Tribunal does not accept that the applicant’s circumstances caused her to cease her enrolment in her registered course of study.

16. In consideration of the above, the Tribunal does not accept that the circumstances as claimed led to the applicant’s course enrolment being cancelled. The Tribunal is not convinced by the applicant’s submissions that her personal circumstances in 2016 caused her not to be enrolled in a registered course of study. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    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

17. 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

18. The Tribunal finds that the applicant appears to have complied with her visa conditions apart from condition 8202. 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)

19. The Tribunal notes the information the applicant provided to the Tribunal referred to the hardship that may be caused to her if her student visa was cancelled. In her response she said:

    I have been on the way to do more researches about which courses and institution are suitable for me future. However, I received notification of cancellation. It one again makes me distress. If my visa is cancelled, it will be a huge shock for my family. They have tried all their lives to send me studying abroad with the hope that I can help my family later. In addition, it also put the bad influence on me as I just recovered from the previous shocked and again put into another trouble.

20. In consideration of the above, The Tribunal accepts that the applicant may experience some hardship as she 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

21. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. 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

22. There is no evidence that there are any dependants attached to the applicant’s 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

23. There is no evidence that the applicant is not aware of the legal consequences of the cancellation of her student visa.

24. The Tribunal accepts that if the applicant’s student visa is cancelled, she would need a visa to remain in Australia lawfully.

25. The Tribunal expects that the applicant may be on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. The Tribunal accepts that the applicant will need to make her own arrangements to obtain a visa to lawfully remain onshore and that if she does not do so, she will be in Australia unlawfully and may be liable to detention and removal if she chose not to return to Vietnam.

26. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of her student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

27. 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

28. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

29. There are no other relevant matters before the Tribunal.

    Conclusion

30. The Tribunal finds that since the applicant received her Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 21 February 2014.

31. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 5 September 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).

32. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances. 

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

    DECISION

34. 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.