Nguyen (Migration)

[2018] AATA 5679

Nguyen (Migration) [2018] AATA 5679 (9 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hong Son Nguyen

CASE NUMBER:  1702813

HOME AFFAIRS REFERENCE(S):           BCC2016/3918739

MEMBER:Brendan Darcy

DATE:9 November 2018

PLACE OF DECISION:  Melbourne

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 09 November 2018 at 9:49am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – business studies – poor advice – applicant did not act wilfully or mischievously – exercise of discretion – genuine student –decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, r 2.43, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 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 cancelled the visa on the basis that the applicant had breached condition 8202 imposed on 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 7 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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?

7. 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).

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

9. The delegate’s decision submitted to the Tribunal at the time of this review application indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 16 December 2014 and the stay period of the visa was extended up to and including 15 March 2018.  It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was enrolled in a registered course of study in a Certificate IV in Business and Diploma in Business (at TAFE Queensland) and a Bachelor of Business (at the Queensland University of Technology or QUT) .

10. PRISMS also indicated that the applicant finished the Certificate IV and Diploma. The Tribunal notes that during the scheduled hearing, the applicant claimed to have completed the Certificate IV but did not satisfactorily complete the coursework for the Diploma. As explained, to the applicant ‘finished’ in PRISMS records may indicate attended satisfactorily but not all units of course work had been passed.

11. The decision record further indicated that the applicant’s enrolment in a Bachelor of Business was cancelled on 1 March 2016.

12. The decision record also stated the applicant was further contacted by a departmental official by issuing the Notice of Intention to Consider Cancellation (NOICC) on 24 January 2017; and to respond within five working days.

13. There was no response to the NOICC and the Department proceeded to cancel your visa on 20 February 2017.

14. During the scheduled hearing, the applicant did not dispute that he had breached condition 8202 since he had not been enrolled in any course work since 1 March 2016.

15. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for a period of more than eleven months between 1 March 2016 and the date of cancellation.  Accordingly, the applicant has not complied with condition 8202(2).

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

16. 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’.

17. A day before the scheduled hearing, the applicant’s representative submitted a number of documents, including:

    ·A letter of offer for International House for General English to commence on 11 April 2016;

    ·A tax invoice dated 14 April 2016 for education provider, HETC;

    ·A letter of offer and enrolment form dated 6 April 2016;

    ·An email to the applicant from TAFE Queensland (dated 1 February 2016) stating “As your CoE with TAFE Queensland has reached its national conclusion, you do not have any current enrolment with TAFE Queensland. When you would like to return to complete your studies you will need to do a new application”;

    ·An emailed from the application to QUT (dated 4 May 2016) outlining that the applicant had requested a deferral and then a cancellation from TAFE Queensland for personal and financial reasons and that the applicant was seeking a letter of transfer; and

    ·An email from the applicant’s representative indicating that the applicant sought advice from an education agent in Australia in relation to his future studies and options for completing a Bachelor of Business at QUT; however the applicant, having limited understanding for the processes and requirements, had his enrolment for Bachelor’s degree cancelled.

    Credibility Findings: Events leading to the applicant’s cancelled enrolment

18. It has been the applicant’s contention that he did not fully complete his enrolled Diploma in Business in February 2016 and that he sought to assistance from the education provider to resolve his enrolment and migration status.

19. As the email dated 1 February 2016 indicates, the education provider invited the applicant to re-enrol to complete the diploma. However, the applicant claimed during the hearing that he was informed that he had to approach the Queensland University of Technology to address the enrolment with the Bachelor’s degree as his incomplete diploma would delay his Bachelor degree. The applicant claimed that he was confused by this request so he approached an education agent to resolve the matter on his behalf as he could not understand at the time to the reasons the TAFE would not resolve the matter with the university for him. In this regard he claimed he did not realise that the TAFE operated separately from the university in which he was enrolled.

20. During the hearing, the Tribunal explained to the applicant that he was only required re-enrol in a diploma to complete and that he would be required to re-enrol in the same Bachelor’s degree for a later commencement date as he is required to finalise the diploma. It was explained to the applicant by the Tribunal that this was a routine matter.

21. Instead of resolving the matter directly with the applicant’s existing education providers, the education agent applied for a new diploma with a different education provider based on the agent’s recommendation. He submitted a letter of offer and enrolment form from April 2016 to support this claim. He also submitted an email dated 4 May 2016 to his education agent indicating that he requested a deferment and a cancellation from the TAFE and a letter of release from the university.  The email to the agent also reveals that his confirmation of enrolment had been cancelled and that he was very concerned about his migration status. This information largely supports the applicant’s otherwise vague claims about using an education agent and trying to enrol in another course and that it appears he was unable to confirm enrolment for a diploma as he was unable to secure of letter of deferment.

22. In the context of the applicant having ‘finished’ earlier coursework, the Tribunal accepts that there is sufficient credible information provided by the applicant that he was acting on poor advice through a third party and that this poor advice led to the cancellation of the enrolment with the Bachelor’s degree and that he was unable to obtain a letter of release. While the applicant did not dispute he was not enrolled in a registered enrolled course as required by condition 8202 since 1 March 2016, the Tribunal further accepts that the applicant did not act wilfully or mischievously in breaching that condition.

23. Finally, the Tribunal makes a further overall credibility finding that the applicant had provided consistent oral evidence that was not undermined by any documentary evidence and that he been a reliable and credible witness about his circumstances, despite his difficulties in articulating them to both his representative and to the Tribunal at the scheduled hearing.

    The purpose of the visa holder’s travel to and stay in Australia

24. During the scheduled hearing, the applicant claimed that he chose to study in Australia because it was his and his mother’s shared ambition that he complete his studies to pursue employment at a managerial level in a large and/or international company where there would be greater opportunities to develop professionally. He added that his mother worked as a manager in a Taiwanese company in Vietnam and that a bachelor degree would be required in Vietnam to achieve those goals. The applicant further stated that he wanted to academically in an English speaking country because he loved Anglophone culture.

25. At times, the Tribunal found the applicant’s testimony to be vague. For instance, the applicant was unable to identify any specific business or industry in which he was interested and spoke of wanting to ‘make profits’ and ‘being successful’. Nevertheless, the Tribunal finds the applicant, given his relative immaturity at the age of twenty-two, did demonstrate some genuine motivation in seeking academic achievement for personal advancement.

26. The Tribunal also notes that the applicant did appear to complete a Certificate IV and a Diploma while in Queensland indicating his capacity and intention to complete a Bachelor’s degree. Furthermore the applicant provided documentary evidence that he genuinely tried to remain enrolled in a Bachelor’s degree. The Tribunal accepts the applicant’s oral claims that had been misdirected by an education agent in enrolling in the same coursework for a diploma with a different education provider. On the Tribunal’s file is an email dated 4 May 2016 seeking to have his Bachelor studies deferred which indicated that he was unaware that his enrolment was cancelled. The applicant admitted that he disengaged with his studies when he could not gain a release letter as he was confused as to the circumstances leading to his non-enrolment in a Bachelor’s degree.  Based on the Tribunal’s finding that the applicant has provided credible documentary and oral evidence about his circumstances, it is accepted the applicant had limited understanding of Australian enrolments and migration law and there is insufficient information before the Tribunal for it to conclude that the applicant sought to wilfully or mischievously breach the conditions on his student visa, as outlined its abovementioned credibility findings.  

27. For these reasons, the Tribunal finds there is insufficient evidence to doubt the applicant’s intention to complete a Bachelor’s degree in business studies or that his intention to garner a qualification to achieve economic advancement back in Vietnam.  Based on the available information, cumulatively considered, the Tribunal is satisfied that the applicant’s purpose of travelling to Australia is to study on a full-time basis and places substantial weigh in this overall finding in favour of not cancelling the visa.

    The extent of compliance with visa conditions

28. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions. The delegate decision does not record any information about further non-compliance. The applicant was not enrolled in a registered course for a long period of time – almost twelve months. The Tribunal considers this significant to the question whether his visa should be reinstated. The applicant has provided explanations to the Tribunal for this non-compliance. The Tribunal gives this factor regarding non-compliance some weight towards the visa remaining cancelled.

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

29. During the scheduled hearing, the applicant struggled to articulate the degree of hardship that may be caused by the visa remaining cancelled.  He said that he gave his word to this mother that he would advance his studies while in Australia. He also feared that entering into Vietnam’s higher education system would be onerous and time-consuming and that he has become used to the style of education in Australia.  The Tribunal finds these specific hardships not only to be not severe or considerable but insignificant in degree.

30. More seriously, the applicant claimed that he and his mother had been victims of physically domestic violence perpetrated by his alcoholic father in the past and that he feared he would be subjected to intimidation from his father if he returned to his home village where both his mother and father continue to reside, albeit separately and divorced. While the Tribunal notes the applicant admitted he was not required to reside in his home village, it accepts the applicant would feel obligated to visit his mother from time to time. The Tribunal accepts these circumstances, while largely avoidable, will cause some distress and emotional hardship to the applicant. However the Tribunal does not access the hardship to be severe. The Tribunal places some weight on this emotional and psychological hardship in favour of the visa not remaining cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

31. As mentioned above, the Tribunal accepts the claimed circumstances that led to the grounds for his enrolment being cancelled and that visa being cancelled.

32. However, the Tribunal does not accept the circumstances were extenuating or beyond his control.  As discussed during the hearing, it was open to the applicant to settle his difficulties directly with the education providers through services provided for international student services, It was also open to the applicant to locate a registered migration agent or lawyer to provide him with advice and assistance when he realised that his lack of enrolment affected his migration status. After all the email date 4 May 2016 submitted by the applicant indicates he understood his enrolment status affected his migration status. The applicant was cognisant the situation was unsatisfactory.  Instead of taking action, the applicant resigned himself to the situation until the issued NOICC.  The applicant again claimed that he went to an education agent again for assistance, albeit a different agent, to assist him with his NOICC, but the agent did not respond. Ordinarily the Tribunal would find this vague response lacking in credibility as education agents are not lawfully permitted to engage with such serious migration matters. However the Tribunal has provided the applicant with the benefit of the doubt based on the Tribunal’s overall favourable credibility finding in him being a reliable person.

33. Furthermore, while the Tribunal accepts the applicant was immature, confused and even gullible at the time of his enrolment’s cancellation; the Tribunal does not accept this explanation prevented him seeking out professional advice or assistance given his relatively advanced education to understand complex situations. Therefore the applicant’s situation had not extenuating or beyond the applicant’s control.

34. Accordingly the Tribunal gives these otherwise credible circumstances no weight towards the visa not being cancelled as it does not accept them to be extenuating, exceptional or beyond the applicant’s control that led to the grounds for the visa being cancelling. 

    Past and present conduct of the visa holder towards the Department

35. Although the applicant did not respond to the NOICC that was issued, there was no evidence that the applicant had been uncooperative towards the Department. Overall, the Tribunal gives this factor a little weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

36. Not relevant.

    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

37. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained or even forcibly removed. It was also discussed that he would be barred up to three years from re-entering Australia. The applicant did demonstrate some knowledge about this factor. He expressed his concerns he would not be able to achieve his dream in completing a qualification in Australia and that he would be separated from his long-time girlfriend.  In relation to this factor, the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

38. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

39. During the scheduled hearing, the applicant did not advance any specific claims that that he faces a well-founded fear of persecution for a nexus reason relevant to the Refugees Convention or any other reasons might breach other humanitarian obligations under other international treaties or protocols. The Tribunal notes that it remains open to the applicant to seek Australia’s protection obligations and therefore it gives this factor a little weight in his favour.

    Any other relevant considerations

40. There are no other relevant considerations in this review application. 

    Conclusions

41. 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.

42. Based on a cumulative assessment of the evidence, the Tribunal finds the applicant had misplaced his trust in a third party which led to him breaching condition 8202 and the grounds for the cancellation of the visa.  While the breach has been significant, the Tribunal is satisfied there has been no wilful malice or mischief behind that non-compliance. The applicant has sufficiently demonstrated that he is a is a genuine student who is willing to study on a full time basis and that he is capable in upholding the conditions to be imposed on his student visa, if it were to be reinstated.  It places considerable weight on these findings, cumulatively considered, in favour of the visa not remaining cancelled.

1. In this case, in considering the evidence provided and on weighing the above factors, the Tribunal has placed more weight on the cumulative findings and evidence in favour of not cancelling the applicant’s student visa over those countervailing findings and evidence in favour of cancelling the visa.

2. The Tribunal notes that the applicant will have to apply for a new visa in a short period if he wishes to study in Australia. Due to changes in the Migration Regulations, Class TU Subclass 573 visas are not available to the applicant, as the Minister has made reductant Subclasses 570 through to 576 visas. They were replaced by Class TU Subclass 500 student visas on 1 July 2016.

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

4. The applicant should be aware that the Tribunal only reached this decision marginally in his favour.

   DECISION

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

   Brendan Darcy
   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.