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

1. 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).

2. 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.

3. 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.

4. 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.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. 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.

7. The Tribunal considered the evidence provided to the Tribunal previously (differently constituted):

   · Department of Home Affairs (the Department) Notification of Cancellation of Student (Temporary) (Class TU) Student visa under s116 (General Power) of the Migration Act 1958.

   ·     Applicant’s Vietnamese passport biometric information.

   ·     Applicant’s written statement dated 17 October 2018.

   ·     English Certificate – University of Wollongong College

   ·     Academic Transcript – Doctor of Education – University of Wollongong Australia (from 3/2014 to 12/2016)

   ·     Doctor Certificate and Evidence of fire (from 2017 to 2018)

   ·     Re-applications for Doctor of Education – Torrens University

   ·     Re-applications for Doctor of Education – University of Wollongong

   ·     Letter of Offer – Diploma of Project Management at Sydney Metro College

   ·     Research Proposal – University of Wollongong

   ·     Letter to AAT

   ·     Response to AAT

8. The Tribunal considered the applicant’s response of 16 May 2018 to the Department’s notification of intention to consider cancelling her student visa.

   Evidence at the hearing

9. The applicant advised she first came to Australia on 15 March 2006 on a scholarship from the Vietnamese government to attend a master’s course. She returned to Vietnam and worked as a lecturer at a university. She returned to Australia in 2013 to undertake a doctorate degree at the University of Wollongong. She has not yet completed her doctorate. The applicant said at the time she received the Department’s Notice of Intention to Consider Cancellation (NOICC), the University of Wollongong had temporarily stopped her course. This was because she did not meet the requirements of the university as she only completed six out of seven subjects. The applicant agreed she had failed one subject. She said she was repeating the subject, but the university suspended her course. The applicant said she wrote to the university, but they confirmed their decision, and she does not know why. The applicant said there was no problem with fees as it was funded by the Vietnamese government.

10. The applicant said she tried to communicate with an overseas student counsellor to be able to continue her studies. The applicant said she then tried to find another university or institution to finish her doctorate. Her thesis is about university reform in Vietnam which she wants to finish. The Tribunal asked the applicant whether she agrees she was not enrolled to study which led to her visa being cancelled. The applicant said she agrees but claimed it was not her fault because at PhD level it is not easy to find a suitable institution that can offer the research environment. She said she is capable of continuing her research, but it is challenging to find a place.

11. The applicant confirmed she has children in Australia. She said when she attended Wollongong, she had them with her and the need to take care of them at the time had an impact on her studies. Her children are now aged 21 and 15. The applicant’s son is at high school and her daughter is at Macquarie University where her academic performance is very good. The applicant confirmed her children are dependents on her student visa. Regarding her plans, the applicant said she wants to continue her education and PhD studies then return to Vietnam to serve the education sector. She said her children want to finish their education here and return to Vietnam to work.

12. The applicant was asked whether she has a compelling need to remain in Australia. The applicant responded that she came to Australia first to attend a master’s course where she complied with visa conditions. After working as a lecturer in Vietnam she was granted another scholarship to study a doctorate. She hopes to return to Vietnam to help improve the education system. The applicant was asked if she had continued to seek an institution to continue her PhD. She said has tried but it is difficult to find. The applicant claimed she would have completed her doctorate if her visa had not been cancelled. The applicant said if her visa is not cancelled, she will re-enrol and finish her PhD but previously she was not allowed to study. The applicant claimed that before her visa was cancelled, there was not much time to find another institution but if she is allowed to study again, it is likely she can re-enrol. The applicant explained her background as a lecturer and her reasons for wanting to finish her PhD. The applicant said due to her own and her children’s studies in Australia, she will have enough material to finish her PhD and can then apply what she learnt in Vietnam. The applicant said it is her belief she will be able to finish her doctorate, even though she began 10 years ago. She referred to her scholarship, her master’s degree, and her partial completion of a doctorate. The Tribunal asked if she would have to begin a doctorate again given the length of time. The applicant said it would depend on the university requirement, but she is confident in her own abilities.

13. The applicant was asked about any hardship that may result from her visa being cancelled. She advised 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. Regarding other visas that would be cancelled if her visa is cancelled, the applicant said the visas of her two children would be cancelled too. The applicant was invited to comment on the legal consequences of cancellation. She said it would be disastrous for the future of her and her children as she would have to repay funding from the government and would not be able to continue working in the Vietnamese education sector. Also, her children’s academic futures would be adversely affected.

14. The applicant was asked if she is working in Australia, but she said she stays at home using her savings and support from her parents. She was asked to comment on any international obligations that may be breached if her visa is cancelled. The applicant referred to her scholarship and stated she would not be able to complete it without a visa. She was not sure about any impact on Australia/Vietnam relations, but submitted the scholarship is based on collaboration between the two countries.

15. The Tribunal noted the courts had found the interests of her children should be considered and invited her to comment. The applicant said finishing her doctorate is critical to her employment in Vietnam. Her children have been studying for 10 years and her daughter won a scholarship while in Australia. Her daughter has achieved distinctions and does very well in mechanical engineering at Macquarie University. The applicant said it will affect their schooling if her visa is cancelled. The applicant concluded by saying she wants her student visa back to be able to find the right university and supervisor, complete her PhD and return to Vietnam. She also wants her children to have time to finish their studies, especially her daughter who wants to contribute to the military in Vietnam.

16. The representative advised the applicant has a strong desire to study as do her two children. He said the applicant should have the opportunity to finish her last course and she has been very worried. He said if the applicant has a valid visa, it will be easier for her to re-enrol. The representative submitted the applicant’s knowledge will be very good for Vietnamese education. The applicant’s daughter is studying engineering which will also benefit the country. According to the representative, the applicant enrolled in other courses on the advice of another agent to keep her visa while she tried to find another university for her doctorate.

17. 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

18. 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?

19. 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).

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

21. 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.

22. 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.

23. 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

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 Department’s Procedural Instruction ‘General visa cancellation powers’.

25. 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.

26. 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.

27. 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.

28. 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.

29. The Tribunal is not persuaded the applicant’s visa was cancelled for reasons entirely beyond her control but does accept she faced difficult circumstances at the relevant time, including a relationship breakdown. In addition, the length of time since the applicant failed to comply with visa conditions is mostly due to the time taken for her to be heard at the Tribunal and for her appeal to be successfully heard before the courts. The Tribunal affords some weight in the applicant’s favour in this regard.

30. The visa holder’s past and present behaviour towards the department including whether she has been truthful and cooperative in her dealings with the department. According to the Department’s decision, there is no evidence to indicate the applicant deliberately attempted to provide any false or misleading information, there is no information to indicate the applicant behaved adversely in any past or present dealings with the Department, the applicant was co-operative in providing updated contact details when requested by the Department prior to issuing the NOICC, and the applicant responded within the relevant timeframe to the NOICC and addressed the issues put to her. This weighs in the applicant’s favour in the Tribunal’s exercise of its discretion.

31. In reference to persons in Australia whose visas would, or may, be cancelled under s140 of the Act if her visa is cancelled, the applicant said the visas of her two children would be cancelled too. The applicant submitted her son is a high school student. Her daughter is now an adult and is successfully studying an engineering degree at Macquarie University. The Tribunal understands it was the applicant’s choice to bring her children to Australia as temporary visa holders and that cancellation of her visa consequently affected her children’s dependent visas. In this case, the applicant expressed her concern about her children’s education being interrupted due to her own situation as a student. The Tribunal is unable to determine whether the applicant can or will finish her doctorate studies but has had regard nonetheless on the effect her visa being cancelled will have on her family members. It may be that her children can apply for their own student visas if the applicant’s visa is not cancelled.

32. The Tribunal assessed whether there are mandatory legal consequences, such as whether cancellation would result in the applicants being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

33. The Tribunal agrees with the Department’s findings in this regard and places some weight in the applicant’s favour. In particular, the applicant and her family members will no longer have a visa status that allows them to remain in Australia. They will become an unlawful non-citizens and will need to regularise their visa status; as unlawful non-citizens the applicant and her family members may be liable for detention under s.89 and removal from Australia under s.98 of the Act. As citizens of Vietnam, it would be open to them to return, to mitigate the possibility of being placed in immigration detention. It is not considered that there is potential for the applicant and her family members to be detained indefinitely; the applicants’ failure to regularise their unlawful visa status and/or cooperate to return to their home country may ultimately result in detention or removal action but it is not necessarily a consequence of the cancellation decision; the applicant may be subject to s.48 of the Act preventing her from applying for further visas while in Australia; she may also be affected by Public Interest Criterion 4013 limiting the granting of a further temporary visa for a specified period. Therefore, she may not be able to continue her studies in Australia for a period of three years; the applicants would be eligible to apply for a Bridging Visas to regularise their visa status. If granted a Bridging Visa it may allow them reasonable time to arrange to depart Australia; the visa holder and her family members may not be permitted to work in Australia following a visa cancellation.

1. The Tribunal is required to consider whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation.  This includes what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].

2. In considering the best interests of children as a primary consideration, the Tribunal notes the applicant’s daughter is no longer a child as she is now 21 years old. The applicant’s son is 15 years old and still a secondary school student. The Tribunal notes the applicant does not want her children’s visas to be cancelled or her own because they are enrolled with education providers in Australia. If the primary applicant’s visa is cancelled her son and daughter’s dependent visas would also be cancelled. If this occurs, her children can return to Vietnam with their mother and would not be separated against their wishes. The Tribunal is required to prioritise the welfare of children in decision making but finds the applicant’s son and daughter being unable to continue studying in Australia would not jeopardise their welfare.

3. 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

4. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

   Wendy Banfield
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(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.