Nguyen (Migration) - [2024] AATA 3564

Nguyen (Migration) [2024] AATA 3564 (13 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Thi Thu Hien Nguyen
REPRESENTATIVE:  Mr Quang Nhat Nguyen (MARN: 0746874)
CASE NUMBER:  2315364
HOME AFFAIRS REFERENCE(S):          BCC2018/1078367
MEMBER:Wendy Banfield
DATE:13 September 2024
PLACE OF DECISION:  Canberra
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

Statement made on 13 September 2024 at 5:23pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit and Family Court remittal – non-compliance with condition of visa – not enrolled in full-time registered course – failure of one subject and course suspended – personal circumstances and financial hardship – intention to complete course – will be required to repay scholarship if visa cancelled and not be able to work in previous work sector – mandatory legal consequences – young adult and teenaged children as dependents – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
CASE
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 20 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202 attached to 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.
The matter is before the Tribunal because of a Federal Circuit and Family Court of Australia decision finding that the decision maker must consider the best interests of children in the exercise of its discretion whether or not to cancel a visa.
The applicant appeared before the Tribunal on 13 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Prior to the hearing the Tribunal received the following submissions:
·     Applicant’s written submissions dated 12 April and 22 April 2024.
·     Student Management Note, degree certificate and academic transcript from the Ministry of Education and Training Vietnam, in the name of the applicant.
·     Certificate and Academic Record from La Trobe University for a Master of Education in the name of the applicant.
·     Transcript of Academic Record from the University of Wollongong for a Doctor of Education in the name of the applicant.
·     Confirmation of Enrolment (COE) for an English Language Program from 11/10/2013 to 14/02/2014.
The Tribunal considered the evidence provided to the Tribunal previously (differently constituted):
· Department of Home Affairs (the Department) Notification of Cancellation of Student (Temporary)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2024] AATA 3564
Case: [2024] AATA 3564
Decision Date: 13 September 2024

CaseChat Overview and Summary

This matter concerned an application to review the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 500 (Student). The applicant had been granted the visa on 10 August 2017. The Department of Home Affairs had cancelled the visa on 20 September 2018, on the basis that the applicant had not been enrolled in a registered course since 29 August 2017, thereby breaching condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth). The review was heard by the Tribunal, with Member Wendy Banfield presiding.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa, and if so, whether the discretion to cancel the visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a full-time registered course and to maintain satisfactory course progress and attendance. The Tribunal was required to consider the applicant's personal circumstances, including financial hardship, the impact on her dependents, and any extenuating circumstances that may have led to the non-compliance.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2)(a) by not being enrolled in a full-time registered course. However, in exercising its discretion regarding cancellation, the Tribunal had regard to several factors. It considered the applicant's stated intention to return to Vietnam to improve the education system, though it was not satisfied this constituted a compelling need to remain in Australia. Crucially, the Tribunal found that the applicant and her children would face hardship if the visa were cancelled, including the obligation to repay a scholarship. Furthermore, the Tribunal considered that the applicant's non-compliance arose from financial difficulties due to family illness and a relationship breakdown, which affected her ability to care for her children and continue her studies.

Ultimately, the Tribunal concluded that, when assessing the evidence cumulatively and considering the circumstances as a whole, the visa should not be cancelled. The decision under review was set aside, and a decision was substituted to not cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCE 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 (Cth) (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? 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 full-time registered course: 8202(2)(a)·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii). In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course. The applicant was granted a student visa on 10 August 2017. The visa was subject to several conditions including condition 8202. On 11 May 2018, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of her student visa on the basis that she had not been enrolled in a registered course since 29 August 2017. The applicant was given an opportunity to comment on the ground for cancellation identified in the NOICC and to provide reasons why her student visa should not be cancelled. In a response dated 16 May 2018, the applicant provided reasons why her visa should not be cancelled. The Department of Home Affairs (the Department) made the decision to cancel the applicant’s visa on 20 September 2018. In her evidence to the Tribunal, the applicant agreed she had not been enrolled to study for the period of time identified by the Department which was a breach of her visa conditions. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).Consideration of the discretion to cancel the visa 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 Procedural Instruction ‘General visa cancellation powers’. The Tribunal considered the purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia. The applicant submitted in her evidence to the Tribunal that she came completed a master’s course in Australia and complied with visa conditions. Then, after working as a lecturer in Vietnam she was granted another scholarship to study a doctorate. She stated she hopes to return to Vietnam to help improve the education system. The Tribunal considered the applicant’s response but is not satisfied the evidence discloses a compelling need to remain in Australia.

Decision

Reasons for decision

The Tribunal does not find that the best interests of the applicant’s children would be breached as a result of visa cancellation. However, in assessing the evidence cumulatively in this case, and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.Wendy BanfieldMemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder must be enrolled in a full time course of study or training if the holder is:(a)a Defence student; or(b) a Foreign Affairs student; or(c) a secondary exchange student.(2) A holder not covered by subclause (1):(a) must be enrolled in a full time registered course; and(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:(a) is enrolled in a course at the Australian Qualifications Framework level 10; and(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

Ratio Decidendi

Legal Principle Established

On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).Consideration of the discretion to cancel the visa 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 Procedural Instruction ‘General visa cancellation powers’. The Tribunal considered the purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia. The applicant submitted in her evidence to the Tribunal that she came completed a master’s course in Australia and complied with visa conditions. Then, after working as a lecturer in Vietnam she was granted another scholarship to study a doctorate. She stated she hopes to return to Vietnam to help improve the education system. The Tribunal considered the applicant’s response but is not satisfied the evidence discloses a compelling need to remain in Australia. The Tribunal then considered the extent of the applicant’s compliance with visa conditions, including whether the applicant has otherwise complied with visa conditions now and on previous occasions. The applicant agreed she did not comply with visa condition 8202 while holding a student visa to study a doctorate degree. There is no evidence before the Tribunal to indicate she did not comply with any other visa conditions, including when she held any visa in the past. The Tribunal next assessed the degree of hardship that may be caused to the applicant and any family members. This included consideration of whether the applicant is, or any family members are, likely to face financial, psychological, emotional or any other hardship because of a cancellation decision. In her evidence the applicant stated she came to Australia on a scholarship and if she does not finish, she fails herself and other people and will have to pay back the Vietnamese government. The applicant stated in her written evidence that cancellation of her visa has affected her mental wellbeing for which she sought assistance. The Tribunal accepts the applicant, and her children will face hardship if her visa is cancelled. Regarding the circumstances in which the ground for cancellation arose, the Tribunal considered whether there were any extenuating circumstances beyond the applicant’s control that led to the grounds existing. This included if cancellation occurred because of a relationship breakdown or as a result of family violence. Departmental policy states that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder. The applicant submitted that during her doctoral studies, she suffered financial difficulties because of family illness and because of a relationship breakdown. She explained she had to take care of her children who were minors at the time which affected studies. When her enrolment at Wollongong University was cancelled, the applicant gave evidence that she attempted to find another education provider to continue her studies. However, this proved difficult due to the nature of her research and more difficult after her visa was cancelled by the Department on 20 September 2018.