Nguyen (Migration)

[2019] AATA 840

Nguyen (Migration) [2019] AATA 840 (21 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Trang Nguyen

CASE NUMBER:  1621973

HOME AFFAIRS REFERENCE(S):           bcc2016/3470908

MEMBER:Mr S Norman

DATE:21 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 21 January 2019 at 4:30pm 

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 – convicted of offences – not a genuine student – financial circumstances – psychological issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 20 December 2016 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). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant was determined to have breached condition 8202(2)(a) - enrolment. 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 appeared before the Tribunal (by video link) on 21 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  

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. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 1 December 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 28 November 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated she had not been enrolled in a registered course of study since 13 April 2016. Therefore it appeared she had breached condition 8202(2)(a); and that her visa may be cancelled under s.116(1)(b) of the Act.

8. The applicant responded to the NOICC.[1] However, she did not dispute that there were grounds to cancel the visa. When this had been put to the applicant at the Tribunal hearing, the applicant said she had no comment.

   [1] Department – from folio 16.

9. After then considering the relevant evidence before the Tribunal, I am not satisfied the applicant was enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

10. 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’

11. Regarding the purpose of the applicant’s travel to and stay in Australia, she said she travelled to Australia for the purposes of study. As noted above, the applicant had been granted her Student visa on 1 December 2014, and at the Tribunal hearing, other than an English language course, the applicant said she had not successfully completed any course in Australia. At hearing, the applicant also confirmed that after receiving the NOICC, she had been accepted to study at a new College. As noted by the delegate, PRISMS indicated the applicant enrolled in a new course on 7 December 2016. When discussed at hearing, the applicant said she may have then studied around one month of a three month ‘Diploma’ course in accounting at the ‘Metro College’ in Sydney. However, since that time the applicant did not believe she had engaged in any material study in Australia.

12. At hearing, the Tribunal put to the applicant that subject to her comments, the following information would be the reason or part of the reason for affirming the decision under review. After then advising the applicant she may request an extension of time to respond to this information after the hearing (something she did not request), the Tribunal said that it understood she was then in prison in West Australia and that she had been charged with criminal offence/s. The Tribunal then advised the applicant that this information may be material to its decision as it may cause the Tribunal to form an adverse view about her credibility, and or it may cause the Tribunal to doubt she was a genuine student. When this was put to the applicant, she advised she had no comment.

13. The applicant did however, subsequently say that she had been residing in Sydney, that she had travelled to Perth to visit her boyfriend, and that she had been there for approximately one month before she had been arrested on 1 January 2018. Since that time she had remained in custody. She also subsequently advised the Tribunal that she had been convicted of criminal offences (relating to cannabis), and she was waiting for her sentencing hearing on 24 January 2019 (some eight days after the Tribunal hearing). She also subsequently said she wished to study in prison in West Australia, then return to her studies in Australia upon her release from custody. However, later in the hearing, and when discussing her mother (who had claimed health problems), the applicant also said she wished to return to Vietnam (words to the effect) as soon as she could to care for her mother.

14. After considering all the evidence, and though the applicant remains in a West Australian prison, the Tribunal is not satisfied her intention is to remain in Australia for the purposes of study.

15. Next, and regarding the extent of compliance with her visa conditions, other than the failure to maintain enrolment in a registered course of study, the Tribunal notes the applicant has been convicted in Australia for criminal offences relating to cannabis. In the circumstances of this case, and as referred to at hearing, the Tribunal may not be satisfied (and now is not satisfied) this supports her claim to be a genuine student.

16. Further, the applicant was not enrolled in a registered course of study from 13 April 2016 until the NOICC letter dated 28 November 2016 (being for more than seven months). 

17. Regarding the circumstances in which the ground for cancellation arose, in her response to the NOICC[2] the applicant conceded that her absence from school was “totally wrong”; but she had been “dealing with many psychological related issues which made her feel stressed all the time”; she said her father had passed away and her “mother was having serious illnesses”. The applicant said “treatment for her mother had cost her a lot of money”. Consequently, the applicant’s family was not able to support her in terms of “finances while she was in Australia”. The applicant also said as she was living “far away from her mother she was worried about her health”. She said she was then unable to attend school. Now her mother’s “situation is getting better, she is now able to get back to work and support the applicant, so the applicant can focus on her studies for a better future”. The applicant also said she had been accepted to study at a new school, and she now promises to try her best to get good results.

    [2] Department – from folio 16.

18. At hearing, when discussing the aforementioned new course of study, the applicant said she had attended the Metro College Sydney, for approximately one month of a three month course. This was at a time the applicant’s claimed financial problems (her mother operates a local grocery) were remedied (or at least improved) and at a time prior to her arrest/incarceration (on 1 January 2018). The Tribunal is not satisfied this is evidence of the applicant genuinely intending to study in Australia.

19. Also at hearing, the Tribunal said it had seen evidence of (possibly) partial government subsidised health care that is provided to citizens of Vietnam.  The country information stated:

    Health
    

    [3] DFAT COUNTRY INFORMATION REPORT, VIETNAM, 21 June 2017.

    2.11 The Government provides access to basic health care for all citizens, in both urban and rural areas … Those in rural areas also have access to specialists in urban areas. Funding for health care facilities is based on the number of registered citizens in a particular area …   However, the Government has taken measures to increase relative healthcare expenditure in rural and remote communities in an effort to ensure more even development outcomes across the country …[3]

20. The applicant had said her remaining family (her mother and 22 year old younger sister who was studying in Vietnam) resided in Bacninh (approximately 1 ½ hours by bus from Hanoi). Therefore, it appeared the mother was capable of accessing the specialists who might assist her in Hanoi. At hearing, the applicant also said her mother did not have access to any subsidised health care.

21. That being said, the Tribunal has not seen, and the applicant did not offer, any corroborating evidence of her father having passed away, her mother’s claimed medical condition (stomach cancer), or the applicant’s own claimed ‘many psychological related issues’ or stress. However, for the purposes of this decision, the Tribunal has decided to accept the mother was suffering some serious medical condition, and the applicant was subject to some degree of stress. I will also accept that it is possible the claimed (chemotherapy) treatment offered to the applicant’s mother (who had now returned to work and whose condition was said to be improving), was not subsidised by any health services that are provided to Vietnamese citizens.

22. However, the mother’s health and the applicant’s financial circumstances allegedly improved from around the time the applicant received the Department NOICC letter and the Tribunal is not satisfied the applicant engaged in any genuine studies from that time (other than for one month of a three month course). The Tribunal also notes the psychological issues or stress the applicant claimed to have suffered, did not prevent her from continuing her work in a nail salon in Australia, or in (at least subsequently) engaging in criminal activities. The Tribunal is not satisfied the applicant’s claimed problems, constitute a reasonable explanation for failing to maintain enrolment in a registered course of study.

23. Regarding the hardship the applicant or her family may suffer if her Student visa is cancelled, the applicant advised the Tribunal that in Vietnam (prior to travelling to Australia), she had completed a ‘Diploma’ of Accounting, and that in Australia, she had been working in a nail salon. However, the Tribunal proposes to accept that if the applicant’s visa is cancelled she or her family may suffer some limited financial or other hardship.

24. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other persons visa would or may be cancelled if the applicant’s visa is cancelled. At hearing, the applicant confirmed she had no family members in Australia. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

25. Next, the Tribunal notes that if the applicant’s visa is cancelled she would (eventually) be subject to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied she would be subject to indefinite (immigration) detention (the Tribunal notes the applicant had not yet been sentenced for her criminal conviction in West Australia).

26. The Tribunal also notes that if the applicant’s visa is cancelled she would be subject to s.48 and would have limited options to apply for further visas in Australia.  She would also be subject to PIC 4013 (meaning she might not be granted a temporary visa for three years from the date of cancellation). 

27. After considering all the accepted evidence herein, the Tribunal is not satisfied the applicant is a genuine student. In the circumstances, the Tribunal is satisfied it should exercise the discretion to cancel the applicant’s Student visa.

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

    DECISION

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

    Mr S Norman
    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.