Nguyen (Migration)

[2018] AATA 5207

Nguyen (Migration) [2018] AATA 5207 (10 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Hang Nguyen

CASE NUMBER:  1703835

HOME AFFAIRS REFERENCE(S):           BCC2017/276224

MEMBER:Stephen Conwell

DATE:10 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 10 December 2018 at 11:18am

CATCHWORDS
MIGRATION – Student Class TU visa – Subclass 573 Higher Education Sector – cancellation – not enrolled in registered course – father’s medical condition – pregnancy – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116(1)(b), 140, 189, 198
Migration Regulations 1994, Schedule 2, condition 8202

CASES

Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 February 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 of the Department cancelled the visa on the basis that the applicant was not enrolled in a registered course and therefore had breached condition 8202 of her visa.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. On 7 February 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate considered the applicant did not comply with condition 8202 of her visa, as the applicant ceased to be enrolled in a registered course. The applicant responded to the NOICC on 13 February and again on 21 February 2017.

5. After taking into account the applicant’s responses and all other evidence, the delegate decided to cancel the visa held by the applicant, having found that the applicant did not comply with condition 8202 of her visa. 

6. The applicant sought review of the delegate’s decision at the Tribunal and attached a copy of the delegate’s decision with her application.

7. By letter dated 30 October 2018, the Tribunal wrote to the applicant inviting her to attend today’s hearing. The Tribunal sent a further invitation to the applicant on 13 November 2018, seeking her consent to amending the time of the scheduled hearing. The applicant agreed to the amendment. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice.

8. The applicant appeared before the Tribunal on 21 November 2018 to give evidence and present arguments. The Hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

9. 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

10. 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?

11. 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).

12. The applicant is a national of Vietnam born on 1 February 1991.  She arrived in Australia in February 2014 as the holder of a Student (TU) 573 Higher Education visa. That visa was subject to condition 8202. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

13. Based on the evidence before the Department delegate (and the Tribunal) in the Provider Registration and International Student Management system (PRISMS) the applicant had not been enrolled in a registered course of study since 13 May 2016.  The applicant was advised that it appeared she did not meet the requirements of condition 8202(2)(a).  The applicant was then notified by NOICC on 7 February 2017 and invited to respond to that notice in writing. 

14. The applicant responded to the NOICC on 13 February and again on 21 February 2017. Having considered the applicant’s submissions and other evidence the information before the delegate, she was satisfied there is a ground for cancellation of the applicant’s visa under subsection “116(1)(b), breach of condition – 8202 of the Act.”

15. The applicant confirmed at hearing that she had stopped studying English on 18 April 2016 and was not enrolled in any registered course from  13 May 2016.  Consequently the Tribunal is not satisfied the applicant does not meet condition 8202(2)(b). Condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a registered course (per Liu v MIMIA [2003] FCA 1170).

16. Following the hearing the applicant requested, and was granted, a further seven days in which to make additional submissions.  The seven day extension expired at 5.00pm on Thursday, 29 November 2018 and no further submissions had been received by that time.

17. The Tribunal finds that on the basis of the evidence, the applicant ceased to be enrolled in a registered course, and therefore has breached condition 8202 of her visa.

    Consideration of the discretion to cancel the visa

18. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

19. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

20. On 13 February 2017 the applicant responded to the NOICC. On 21 February 2017 she submitted another similarly worded response, which is set out below:

    I would like to thank you for giving me an extra time to prepare further statement and support documents. I am trying to explain why I came to Australia to study, why I could not continue my previous study and what is my strong intention right now to prove the reasons why my visa should not be cancelled.

    I came to Melbourne, Australia early 2014 to study Bachelor of Business at University of Canberra, which is located at Melbourne campus. I chose to pursue the business degree as I wanted to become a business admin working for a multinational company in Ha Noi, Vietnam; and I chose Australia as it is the western country with an affordable standard of living and it is not far away from Vietnam in comparison with America and European countries. Additionally, most of the big company located in Vietnam highly evaluates the Australian qualification, which makes it easier for me to get the proper job with high salary after I complete my Bachelor from University of Canberra. Prior to commencing the study of business degree early 2015, I had to spend almost one year at Ozford College to complete the General English and English for Academic Purposes. As I was very new to the English speaking environment, I found it was very difficult to catch up with the studies and no one at school was willing to help me to cope with these problems.   After few months at school, I started losing my confidence and avoided taking to anyone; I was very stressed out with English studies as I didn't fully understand since the first day. It was totally a culture shock to me. Here I don't mean that I didn't try my best to overcome the difficulties in the new environment. Honestly, I did try to make a spiritual breakthrough which was to will myself to fight with some sorts of depression. However, as I was a very shy girl with some character flaws, there were things beyond my control no matter how hard I try. In fact, sometimes I felt that trying seems to make things even worse.

    One day, I was recommended to one education agent on Collins Street when I was extremely in need of help. After I explained my issues to the education consultant, I was advised of changing English studies to the lower-level English course which was comprised of Certificate I and II and Ill in EAL at Southern Cross Education Institute (SCEI). As I realised that this would be the best way for me to study English from lower level, I decided to proceed further with this plan. The education agent helped me to enrol at SCEI and started new courses from end of 2014.

    I began studying Certificate I at SCEI and I did show my strong interest in this course. Since I moved to SCEI with many of new friends in the new study environment, I had made the progress in my English study. Firstly, I easily completed Certificate I in EAL within two months and continued my Certificate II. Here, the course materials required me to actively working on computer and I faced new challenge to use new technology and struggled to find the efficient way to learn how to use computer as I hadn't had much experience with computer before. About this time, I also had got bad news from my home. My father was diagnosed with his stroke and our family had been through difficult time physically, mentally and financially. I should have gone back home but my parents wanted me to continue studying here as we had planned.  Ultimately, I wanted to make my future career goal achievable; I wanted to stick with my first studying plan to be a graduate in Bachelor of Business and I didn't want to easily give up after all. However, as life moves on with unexpected things that happen, I was lost again. I couldn't get it over from that deep stress and worrying of my family and my future. More than half of study fund, which had been used to financially support me, was re-allocated for my father's usage in medical treatment. Before SCEI required me to make the payment but I was still in deep shock and couldn't do anything else until SCEI cancelled my CoE.

    Until late last year it was very hard for me to try to get it over and now, my father has much recovered from his stroke. He is financially supported with regular social allowance and many of the things have been sorted out. Finally, I could try to find a solution for my brighter future, and then I have decided I should get useful qualification for my future career which needs less study period, lower level study and also more job opportunities. Job market in Vietnam has dramatically changed and business administration career is unfortunately no longer as highly demanded as it was 3 years ago. Instead, the hospitality and tourism industry is actually, booming and there are the increased numbers of international tourists travelling to Vietnam for both business trips and vacations. More resorts and restaurants have been constructed to keep pace with the market and this leads to a very high demand of qualified labour force working in hospitality and tourism industry. Therefore, I have decided to change my career path to best suit the job market in Vietnam.

    I am planning to achieve my career goal in becoming high level chef in five star hotels or fine dining restaurants in Ha Tinh after I come back Vietnam. In order for me to do that, I believe that I would definitely need to obtain an Australian qualification in hospitality and management, otherwise I would not be able to get that sort of jobs in Vietnam. I have searched suitable institution for me then recently got further consultation from one of education agent. However, before I received an offer letter from institute, I received a letter from your office which could totally destroy my hope of continue studying in Australia and dream of my future career. It happened due to insufficient knowledge of student visa conditions and unexpected family disaster. But now I fully understand all visa conditions and become much stronger to keep my study for better future. Finally, I've got a letter of offer for new study plan and I am ready to make it comes true. No more misfortune is accepted for me and for my family and I will definitely make it over next couple of years to safely return to my family.

    There was not enough time for me to contact your office and I found a migration agent only few days ago; therefore, I just wrote this brief statement before the due date. I am willing to provide detailed statement and other documents if you ask me to do. So please kindly advise me if you require me to provide any further information or documents.

    I sincerely hope that your office would consider my compelling and compassionate reasons and give me the last chance to fulfil my dream.

21. The applicant also submitted the following documentary evidence (with accompanying  English translation):

    ·    Receipt book for social allowance benefits in favour of Nguyen Quoc Ky.

    ·    Hospital Note recording the admission of  Nguyen Quoc Ky from 30 September - 10 October 2016.  Diagnosis: ‘post-operative intestinal adhesion’.

    ·    Letter of Offer dated  20 February 2017 from Melbourne Language Centre to study English for Academic Purposes for the period, 6/03/2017 - 21/07/2017.

    ·    Letter of Offer dated 20 February 2017 from Front Cooking School to study hospitality, leading to a Diploma of Hospitality Management, with expected completion date of 22/09/2019.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or remain in Australia

22. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. The applicant’s submission (Tribunal file, folio 8 both sides) notes that the applicant to Australia in early 2014 to study.  However  the evidence indicates, and the applicant confirmed at hearing that she had ceased studying on 18 April 2016 and had not been enrolled in a registered course since 13 May 2016.This indicates that the applicant was not pursuing the purpose for her travel to Australia, as she was not actively engaged in studies since that date.  At the time of the delegate’s decision this period of non-enrolment exceeded eight months.

    The extent of compliance with visa conditions

23. There is no information before the Tribunal to indicate that Ms Nguyen is in breach of any condition of her visa, other than condition 8202. However the Tribunal considers the breach to be significant, given the length of time in which the applicant failed to maintain enrolment.  The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

24. Ms Nguyen states in her submission that the family suffered mentally and financially after her father suffered from a stroke and more than half of the funds allocated for her study had to be redirected towards her father’s medical expenses. Ms Nguyen stated she wanted to return home however, her parents wanted her to continue studying in Australia.

25. The Tribunal notes that the medical certificate provided with Ms Nguyen’s submission does not state when her father suffered the stroke nor does it show evidence of family relationship between the applicant and the named patient. However the Tribunal is willing to accept that the patient named in the medical certificate is the applicant’s father.

26. At hearing the applicant disclosed that she is pregnant to her boyfriend, who is also in Australia on a Student visa, and who hopes to apply for permanent residency in due course. She is not entirely sure if her current boyfriend is the father of her child as she was also having sexual relations with another man at around the time of her conception.

27. The Tribunal acknowledges that if the applicant’s visa is cancelled she would be unable to continue with her study and would have to leave Australia without a tertiary qualification. Furthermore that cancellation of her visa would most likely cause her some financial difficulty.   

28. The Tribunal acknowledges that if the applicant’s visa is cancelled she would become an unlawful non-citizen and liable to detention under s189 and removal under s198 of the Act. She would also have limited options to apply for further visas in Australia and may thus be required to return to her country of origin. This would most likely prevent her from returning to Australia to visit her boyfriend for at least three years from the time of cancellation of her visa. The Tribunal has regard to all these factors however it is not persuaded that it should exercise its discretion not to cancel the visa.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

29. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the applicant’s submission. The Tribunal accepts that the applicant wishes to stay in Australia with her boyfriend who may be the father of her unborn child, although by her own admission, she cannot be certain of this.

30. The applicant’s oral evidence is that she is perhaps three months pregnant at the time of hearing. The Tribunal notes that the applicant makes no claim that her pregnancy has been the reason, wholly or in part, for her non-enrolment since 13 May 2016.

31. Whilst the Tribunal accepts the evidence that the applicant’s father suffered a medical condition requiring hospitalisation in early October 2016, the Tribunal is not persuaded that this constitutes extenuating or compassionate circumstances such that the Tribunal might exercise its discretion to set aside cancellation of the applicant’s visa.  Further, based on the information before it, the Tribunal is not satisfied the breach occurred in circumstances beyond the applicant’s control.  The Tribunal weighs this factor in favour of cancelling the visa. 

    Past and present conduct of the visa holder towards the department

32. The Tribunal acknowledges that the applicant has responded to all requests for information in timely fashion. The Tribunal gives this some weight in the applicant’s favour.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

33. If the applicant’s visa is cancelled, she will be given a time limited period in which she may make plans to leave Australia and she will be limited in her ability to apply for another visa. The applicant has not raised concerns in regards to this. The applicant is not currently in detention and it appears unlikely that she will be detained if the cancellation occurs. The Tribunal therefore gives this factor minimal weight.

    Whether there would be consequential cancellations under s.140

34. There are no persons in Australia whose visas would, or may, be cancelled under s140.

    Whether any international obligations would be breached as a result of the cancellation

1. There is nothing before the Tribunal to suggest the applicant has applied for protection or that the Tribunal should consider this.

   Any other relevant matters

2. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

3. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that cancellation of a visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Stephen Conwell
   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.