Nguyen (Migration)

[2018] AATA 5814

Nguyen (Migration) [2018] AATA 5814 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Da Nguyen

CASE NUMBER:  1704353

HOME AFFAIRS REFERENCE(S):           BCC2017/416325

MEMBER:Joseph Lindsay

DATE:20 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 20 December 2018 at 9:31am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – business studies – mechanic course – poor English language skills – no exceptional circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 March 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 his 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 applicant appeared before the Tribunal on 18 December 2018 to give evidence and present arguments. The applicant was represented by a registered migration agent at the Tribunal hearing.

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.

8. In the hearing, the Tribunal put to the applicant that he had provided a copy of his decision record to the Tribunal. The Tribunal asked the applicant if he had read the decision, to which the applicant indicated he had read the decision. When the Tribunal asked the applicant if he understood why his visa had been cancelled, he indicated that he did not satisfy the attendance requirement and his school cancelled his Certificate of Enrolment (COE).

9. The applicant’s evidence is consistent with the information in the applicant’s Provider Registration and International Student Management System (PRISMS) record, which indicates that the applicant has not been enrolled in a registered course of study since 11 September 2016.

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’.

    Applicant’s English skills and abilities

12. One of the more significant questions for the Tribunal is whether the applicant would be reasonably able to successfully study and complete a higher education course in Australia that was conducted in English if the applicant was to hold a 573 student visa.  

13. The Tribunal notes that in 2013 the applicant successfully completed a Certificate IV in ESL (English as a Second Language). However, during the hearing the applicant insisted that he needed an interpreter to assist him in the hearing. He indicated he was concerned that he could not express himself clearly in English.

14. The Tribunal indicated to the applicant that since he had been granted a 573 higher education sector visa, his English ability should be good. In response, he indicated that he was not sure that he could clearly present his case without an interpreter.

15. The Tribunal indicated to the applicant that he would be able to use an interpreter if he wished to; however, the applicant had come to the Tribunal saying he was able to do a tertiary course involving reading, written, and spoken English.

16. In response, he indicated that he was not sure he could clearly respond in English and he needed the interpreter.

17. The Tribunal put to the applicant its concern about the applicant’s apparently poor English language skills, and how this situation was going to impact on his ability to study and successfully complete a higher education course.

18. In response, he indicated that his English is not very good yet, and that he could not talk clearly yet, but that he could understand English and could write in English.

19. The Tribunal asked the applicant whether he was saying his oral English language skills are good or not good.

20. In response, he indicated that his oral communication skills in English are not very good.

21. The Tribunal put to the applicant its concern that, if the applicant’s oral communication skills in English were not very good, how did he expect to be able to study and successfully complete a higher education course.

22. In response, he indicated that during his course he can improve his oral communication skills in English.

23. The Tribunal put to the applicant its concern that, given the applicant’s poor oral communication skills in English, the applicant would not be able to successfully complete a higher education course in Australia.

24. In response, he indicated that he still wanted to do study in his field and have a better future.

25. The Tribunal put to the applicant that if he could not even converse with the Tribunal, how did he expect to be able to successfully complete a higher education course if he got his student visa.   

26. In response, he indicated that his English is not good at the moment but during the course he would try to improve his English, because if he can’t explain clearly all his wishes and reasons why he would like to do the course he may not be able to study further.

27. The Tribunal put to the applicant that those issues would be discussed. The Tribunal put to the applicant its concern that even before the Tribunal was able to discuss the substantive issues in his matter, the applicant had indicated his oral English language skills were such that he could not converse with the Tribunal in English, and the applicant’s indication that if he got his student visa his English skills would improve in the future.

28. In response, he indicated that he would try to improve his English after the hearing.

29. The Tribunal put to the applicant that his assurance that he would improve his English sometime in the future did not convince the Tribunal that he would be able to successfully complete a higher education sector course should he get his student visa.

30. In response, he indicated that he would try his best to improve his English while he was doing his main course on his student visa.

31. In considering the above the Tribunal finds that the applicant’s poor English language skills are such that the Tribunal is not convinced that the applicant would be able to successfully complete a higher education sector course should he get his student visa.

    The circumstances in which the ground for cancellation arose

32. The applicant indicated that when he was studying he had a lot of difficulties due to his family circumstances. He indicated that he was living with his older sister in Australia and she was seriously ill. He indicated that his sister’s child was also seriously ill. He indicated that he had to spend a lot of time looking after his sister.

33. The Tribunal accepts that the applicant’s family members were sick and places some weight on this.

34. The Tribunal asked the applicant what his actions were in regard to his provider when he knew his family members were sick and when he had problems with his study. In response he indicated that he advised the school about his circumstances many times.

35. When the Tribunal asked the applicant whether he had any documentation about him telling his provider about his personal problems, he indicated that he did not have any such documentation.

36. In considering the above the Tribunal does not accept that the applicant approached his provider with his personal problems.

37. The Tribunal asked the applicant what approaches he made in relation to the Department when he found that he had personal problems that impacted on his study.

38. In response, the applicant said he did not do anything.

39. In considering the above the Tribunal accepts that the applicant did not approach the Department about his personal problems.

40. The Tribunal asked the applicant about his study history in Australia. The applicant indicated he completed the Certificate IV ESL course, the Certificate IV in Business, and Diploma of Business. After that he enrolled in a Bachelor of Business.

41. He indicated that at that time the Bachelor of Business was not in demand in Vietnam and that’s why he decided to change to a different course.

42. He indicated that he found out that mechanics are in higher demand in Vietnam, and so he decided he wanted to be a car mechanic.

43. The Tribunal asked the applicant why he did not go back to Vietnam, apply for a 572 visa and come back to Australia.

44. In response, the applicant indicated that he was able to get enrolled in a mechanics course starting in March 2019, so he decided to stay in Australia.

45. The Tribunal put to the applicant that was not the purpose of his visa. The Tribunal indicated that the purpose of the 573 visa was to do a course in higher education. The Tribunal put to the applicant that a car mechanics course was not higher education.

46. In response, the applicant indicated that he could only start from a Certificate III but that he wanted to study a higher course in car mechanics. When asked what course, he indicated he wanted do a Bachelor Degree in car mechanics. The Tribunal asked the applicant whether he wanted to do a Bachelor of Mechanical Engineering, to which he indicated that was the course he wanted to do.

47. The Tribunal discussed the applicant’s PRISMS record with him. The Tribunal explained to the applicant that what he had said was consistent with his PRISMS record and that there was no information in the applicant’s PRISMS record that was adverse to him. The Tribunal explained that the PRISMS record showed that the applicant had commenced studying in Australia in 2013, where he had done his English language course, the Certificate IV in Business and Diploma of Business, before then enrolling in the Bachelor of Business that ceased, and then enrolling in a Certificate III in Light Vehicle Mechanical Technology, and up to the present where he had recently enrolled in the Certificate III and IV in mechanic-related courses.

48. The Tribunal put to the applicant that the purpose of his visa was to do a higher education course. The Tribunal put to the applicant that it was a conscious decision on his part to stop studying a course he didn’t want to do and start studying a course he did want to do (i.e. cease his enrolment in the Bachelor of Business and commence the non-higher education mechanics courses). The Tribunal put to the applicant that he had indicated that he was not going to go and undertake higher education on the 573 visa, but that he might undertake higher education sometime in the future.

49. In response, the applicant indicated that he intended to complete his Certificate III and Certificate IV and then he will study a Bachelor of Engineering.

50. The Tribunal asked the applicant if his low level of English language skills impacted on his decision to cease his enrolment in the Bachelor of Business, to which he indicated that he changed his studies because the Bachelor of Business was not in demand in Vietnam. He indicated that if he continued to do the Bachelor of Business he would not get a stable job in Vietnam compared to a course in mechanics.

51. The Tribunal put to the applicant that if he had come to that conclusion, that he was not going to study his Bachelor of Business anymore, the obligation was on him to go to the Department to tell them he wanted to study the trade course instead and ask advice from the Department on the best way to do this. The Tribunal put to the applicant that he did not do that.

52. In response, the applicant indicated that at that time he relied on his agent for all the paperwork and his agent advised him to obtain a release letter from the school where he was doing a Bachelor of Business in order to transfer to a different course.

53. The Tribunal asked the applicant if he had any documentary evidence to support what he was saying, and the applicant indicated he did not have any such documentary evidence.

54. The Tribunal put to the applicant that the Tribunal accepted that the applicant’s agent misadvised him but that the applicant was still responsible for his decisions in regard to his visa. The Tribunal put to the applicant that he reasonably knew that from the time he got his 573 visa his obligation was to enrol in a higher education course, study it and finish it. The Tribunal put to the applicant that there was a set timeframe he had been given in which to take those actions yet he chose not to do that.

55. In response, the applicant indicated that he changed courses so that he would have more saleable qualifications on his return to Vietnam.

56. The Tribunal indicated to the applicant that it accepted that the applicant had changed courses for this purpose, and the Tribunal accepted the circumstances he had presented.

57. The applicant’s agent then submitted to the Tribunal that the Tribunal need not be concerned about the applicant’s level of English because he was nervous at the Tribunal, and that he would have no problem in continuing his course. The applicant’s agent indicated to the Tribunal that the applicant did not know he was responsible for changing his visa from 573 to 572, and that the applicant had relied on his agent.

58. The Tribunal put to the agent that it was the responsibility of all visa holders to abide by the conditions of their visa.

59. The agent indicated to the Tribunal that, if the Tribunal wished, the applicant would go out and enrol in a Bachelor of Mechanical Engineering course after the hearing.

60. The Tribunal put to the agent that if the agent was suggesting that as a result of the hearing the applicant would go out and enrol in a Bachelor of Mechanical Engineering course in a demonstration of his intent to go on to higher education, given the applicant’s student history, the Tribunal may put low weight on that.

61. After the hearing on 18 December 2018, the agent provided the Tribunal a copy of a COE showing that the applicant had enrolled in a Diploma of Automotive Technology commencing 27 April 2020. The Tribunal places low weight on the fact that after the hearing the applicant had enrolled in a Diploma of Automotive Technology commencing 27 April 2020.

62. In considering the above, the Tribunal finds that the applicant reasonably knew that from the time he got his 573 visa his obligation was to enrol in a higher education course, study it and finish it. The Tribunal finds that the applicant knew he had a set timeframe that he had been given in which to take those actions (i.e. enrol in a higher education course, study it and finish it) yet he chose not to do that. The Tribunal accepts that the applicant chose to change his course of study from a higher education course to a trade course in order to improve his employment prospects on his return to Vietnam. However, the Tribunal finds that he did not approach the Department to advise the Department of his proposed course of action. The Tribunal finds that the applicant consciously ceased his enrolment in a higher education course, and in doing so the applicant reasonably knew he was breaching the conditions of his 573 visa yet chose to do so anyway. The Tribunal does not accept that the applicant has any genuine intention of enrolling in or completing a higher education course, including enrolment in a Bachelor of Mechanical Engineering, either after the hearing or at any point in the future. In any event, given the applicant’s current poor English language skills, the Tribunal does not accept that the applicant would be able to successfully complete any higher education course.

    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

63. 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

64. The Tribunal finds that the applicant appears to have complied with his 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)

65. In response to this issue at the hearing, the applicant indicated that if his visa was cancelled he would suffer some hardship primarily because it would be very difficult for him to study, and if goes back to Vietnam he will not have a stable job.

66. The Tribunal put to the applicant that he attained an English language qualification, a Diploma and a Certificate IV in Business. In response, he indicated that his qualifications are not in high demand in Vietnam, where lots of people have them but still can’t get a job. When asked why he enrolled in those courses in the first place, he indicated that at the time they were still in high demand in Vietnam.

67. The Tribunal accepts that the applicant may experience some hardship as he 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

68. 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

69. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his 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

1. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa. The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully.

2. At present, the applicant is 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 his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to Vietnam.

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

4. 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

5. 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

6. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated there were no matters he wanted to raise.

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

   Conclusion

8. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 25 April 2013, now some five and a half years ago, the applicant has not completed any higher education courses.

9. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 11 September 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).

10. The Tribunal finds that the circumstances that led the applicant to not complete any higher education courses, as detailed above, are not exceptional circumstances. 

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

    DECISION

12. 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.