NGUYEN (Migration)

[2019] AATA 879

NGUYEN (Migration) [2019] AATA 879 (5 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs THI DUNG NGUYEN

CASE NUMBER:  1713097

HOME AFFAIRS REFERENCE(S):           BCC2017/1276983

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 1:23pm

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 – pregnancy and morning sickness – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 360
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 15 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 1:00pm. The Tribunal notes that on Tuesday 5 February 2019, the applicant’s newly appointed representative sent an email to the Tribunal indicating that the applicant would not be attending the hearing and requested that the Tribunal make a decision on the papers.

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

5. 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

6. 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?

7. 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).

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

9. 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 15 September 2016. In the response the applicant provided to the Department dated 20 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.   

10. 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

11. 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

12. 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:

    Thi Dung Nguyen was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa on 24 October 2013. On 9 July 2016 Thi Dung married Huong Van Tran.  Thi Dung became pregnant around October 2016. During her pregnancy she suffered serious morning sickness and illness as per the medical reports attached. It is because of this illness from the 21st of July 2016 she was restricted from attending her studies. Thi Dung gave birth to her son Tran Jonny Anh Khoi on the 16th of March 2017 as per birth certificate attached.

    The child is 3 months old as at the date of this letter and requires the attention and care of the mother in these early periods of development.

    Thi Dung is requesting a Bridging A (Class WA) visa.

13. The Tribunal also notes that the applicant provided a copy of a birth certificate for her son, Johnny Anh Khoi Tran who was born on 16 March 2017 and a copy of a medical certificate dated 20 June 2017 that indicated the applicant consulted her doctor on 21 July 2016 for her pregnancy and ‘often had signs of morning sickness.’

14. Based on the information above, the Tribunal accepts that the applicant had a baby on 16 March 2017 and suffered from morning sickness in 2016. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor but does consider the circumstances to be exceptional circumstances.

    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

15. 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

16. 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)

17. The Tribunal notes does not have any information about the hardship that may be caused to the applicant if her student visa was cancelled. The Tribunal gives no weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

18. 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

19. There is no evidence that there are any dependants attached to the applicant’s student visa. However, the Tribunal makes the assumption that the applicant’s baby son may have been put on the applicant’s visa as a dependent. 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

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

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

22. 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.

23. 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.

24. 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

25. 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

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

    Conclusion

27. The Tribunal finds that since the applicant received her Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 24 October 2013.

28. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 15 September 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).

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

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

    DECISION

31. 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.