Nguyen (Migration)

[2018] AATA 5282

Nguyen (Migration) [2018] AATA 5282 (27 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thanh Huyen Nguyen

CASE NUMBER:  1700412

HOME AFFAIRS REFERENCE(S):           BCC2016/3902688

MEMBER:Stephen Conwell

DATE:27 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 27 November 2018 at 4:51pm

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 – length of non-enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 360
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Liu v MIMIA [2003] FCA 1170

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 January 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 21 December 2016, 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 did not provide a response to the NOICC, and 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. 

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

6. By letter dated 13 September October 2018, the applicant was invited to appear before the Tribunal at a hearing scheduled for 1 October 2018. On 25 September 2018 the applicant’s representative notified the Tribunal of their recent appointment and sought a postponement of the hearing in order to become acquainted with the matter and advise the applicant. The Tribunal agreed to the request and advised the representative accordingly.

7. By letter dated 1 October 2018, the applicant was invited to appear before the Tribunal at a re-scheduled hearing on 24 October 2018. On the day of the re-scheduled hearing the Tribunal was notified by email that the applicant was unable to attend for medical reasons. A medical certificate from a general practitioner, Dr Melaik, accompanied the email and stated that the applicant,

   “has a medical condition, adjustment disorder/stress and anxiety, and she is incapable to attend(sic) any hearing either in person or by telephone as her condition is s[e[vere and she is very emotional.

   I referred her to see a counsellor to assist and help.

   She will be unfit for any hearing either in person or by phone for a month, from 23/10/2018 until 23/11/2018.

   This statement was completed on 23 October 2018.”

8. In view of the late request for postponement of the hearing, the Tribunal agreed to it however by letter of 26 October 2018, the Tribunal requested that in order for it to consider the request that the hearing be postponed for a month, the applicant’s healthcare professional is to provide the Tribunal with a detailed medical history of the applicant’s medical condition, including when it was first diagnosed, its symptoms, the medication prescribed for its treatment and why it has rendered the applicant unfit to participate even in a telephone hearing.

9. By letter dated 12 November 2018, the applicant was invited to appear before the Tribunal at a re-scheduled hearing on 27 November 2018, which in effect afforded the applicant a little more than the period of a month which her medical certificate deemed her to be unfit to attend or participate in a hearing.  As with the previous Tribunal invitations, 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. 

10. By email of 20 November 2018, the Tribunal was notified by her representative that the applicant was unable to attend the scheduled hearing for medical reasons, and “is happy for a decision to be made without her presence.”[1]  A medical certificate from, Dr Melaik, accompanied the email and stated that the applicant,

    “is under a lot of stress and awaiting an appointment with a psychologist.

    In my opinion she will not be ready to attend any meetings to discuss her visa issues until seeing a counsellor. 

    This Certificate was completed on 19/11/2018.”

    [1] Tribunal file, folio 103.

11. The applicant did not withdraw her application for review. The hearing was not cancelled and the Tribunal remained prepared to hear the application, however Ms Nguyen did not appear before the Tribunal on 27 November 2018. Accordingly, this decision is made pursuant to section 360(2)(b) of the Migration Act which enables the Tribunal to make a decision on a review where the applicant consents to the Tribunal deciding the review without the applicant appearing before the Tribunal.

12. 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

13. 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?

14. 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).

15. The applicant is a national of Vietnam born on [date].  She travelled to Australia in as the holder of a Student (Subclass 573) 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.

16. Based on the evidence in the Provider Registration and International Student Management System (PRISMS), the Department delegate found that the applicant had not been enrolled in a registered course of study since 3 August 2015.  The applicant was advised that it appeared she did not meet the requirements of condition 8202(2)(a). 

17. The applicant was notified by NOICC on 21 December 2016 and invited to respond to that notice in writing.  No response was received by the Department.  Based on the information before the delegate, he 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.”

18. On the evidence before it the Tribunal is satisfied that the applicant has not enrolled in any registered course since 3 August 2015.  The Tribunal notes that 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).

19. 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

20. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

21. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to the material evidence available to it, as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

22. Whilst Ms Nguyen did not respond the Department’s NOICC and did not appear before the Tribunal when invited to do so, her representative did make a written submission by email dated 22 October 2018 (‘representative’s submission’)

    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

23. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. The representative’s submission notes that the applicant had ‘travelled to Australia for the betterment of her education.’  However as confirmed by her PRISMS record, the applicant has not been enrolled in a registered course of study on since 3 August 2015.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 15 months.

    The extent of compliance with visa conditions

24. 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)

25. The Tribunal notes the applicant had not identified any hardship that may be caused to her and/or any family member by the cancellation of her visa.  However, the Tribunal accepts the representative’s submission’ that the applicant would be unable to continue with her study and would leave Australia without a tertiary qualification. The Tribunal accepts that the applicant might be subject to some financial difficulty if the visa is cancelled. 

26. 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. However, this does not persuade the Tribunal that it should exercise the discretion not to cancel the visa.

27. The Tribunal notes there is no evidence that any family member/s in Australia would be negatively impacted by the cancellation of the applicant’s 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.

28. Whilst Ms Nguyen did not respond the Department’s NOICC and did not appear before the Tribunal when invited to do so, her representative’s submission states that the applicant’s aunt was purported to be the financial sponsor of her studies in Australia. That sponsorship was withdrawn over a previous financial dispute between the two parties, leaving the applicant unable to support herself and her studies in Australia.

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 representative’s submission. It notes that no evidence was submitted in support of this explanation, nor were further details regarding the terms of the financial arrangement or the identity of the applicant’s aunt disclosed. Accordingly the Tribunal gives this explanation minimal weight. Further, based on the information before it, the Tribunal is not satisfied the breach occurred in circumstances beyond the applicant’s control.  Again, based on the information before it, neither does the Tribunal consider there are extenuating or compassionate circumstances in this case.

    Past and present conduct of the visa holder towards the department

30. Nothing adverse is known about the applicant’s past and present behaviour towards the Department. 

    Whether there would be consequential cancellations under s.140

31. The Tribunal is satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.140 as a consequence of the applicant’s visa being cancelled.

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

32. Regarding Australia’s international obligations, the Tribunal is not persuaded that the circumstances of this case were such that would engage Australia’s international obligations. There is no evidence of children (or other family members) in Australia whose interests would be affected by the cancellation.  There was nothing to suggest that family violence was a relevant factor.

    Any other relevant matters

33. As Ms Nguyen did not accept the invitation to appear before the Tribunal to give evidence and the representative’s submission did not mention any other relevant matters, this consideration was not relevant in the circumstances of this application for review to the Tribunal. This consideration is given no weight by the Tribunal.

    Conclusion

34. The Tribunal has considered all information on the Department’s file and the Tribunal’s file, including the delegate’s decision and the representative’s submission. Considering the circumstances as a whole, the Tribunal is satisfied the visa should be cancelled.

    DECISION

35. 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.