Nguyen (Migration)

[2018] AATA 4551

Nguyen (Migration) [2018] AATA 4551 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr The Phong Nguyen

CASE NUMBER:  1702028

HOME AFFAIRS REFERENCE(S):           BCC2016/3918808

MEMBER:Brendan Darcy

DATE:8 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 08 October 2018 at 12.41 pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – late enrolment – death of immediate family member – length of non-compliance – lack of academic achievement – non-attendance at hearing – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 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 there is a ground for cancelling the visa and because the delegate was not satisfied the grounds for cancellation of this visa outweighed the grounds for not cancelled. 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 applied to have the delegate’s cancellation decision reviewed on 7 February 2017.

4. On 19 September 2018, the applicant was invited to appear to a scheduled hearing at 12.30 pm on 5 October 2018 by emailing the applicant.  Two reminder SMS messages were sent to the applicant’s mobile phone about the scheduled hearings on 27 September 2018 and 4 October 2018.  Both messages failed to be delivered.

5. The Tribunal did not receive any response to the invitation to attend the scheduled hearing. Neither did the Tribunal receive any submissions by the applicant or on the applicant’s behalf to consider a postponement, including a medical certificate; nor any other submission whatsoever, right up to and including the beginning of the scheduled hearing.

6. The applicant did not appear before the Tribunal on 5 October 2017 at the scheduled time to give evidence and present arguments. The hearing was extended for an additional ten minutes to allow the applicant a further opportunity to present to the Tribunal or provide further request a postponement.  The Tribunal waited more than seventy two hours for further submissions or requests, including medical certificates, before writing of this decision.

7. At the time of writing this decision, the Tribunal has not received any further correspondence regarding the applicant’s non-attendance or visa cancellation. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to proceed with its decision-making on this review application without taking any further action to enable the applicant to appear before it.

8. 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

9. 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?

10. 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).

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

12. According to the decision record submitted at the time of this review application was lodged, the applicant was granted this Class TU Subclass 573 visa on 5 November 2013 and was set to expire by 6 December 2017. The decision record states that based on the Provider Registration and International Student Management Systems (PRISMS), the review applicant had been enrolled in Bachelor of Business but had not been enrolled in a registered course for a Bachelor’s or Master’s degree since 20 January 2016 when the applicant obtained a new enrolment for Certificate II and III in EAL and a Diploma of Business at Pax Institute of Education.

13. The Tribunal notes the applicant did not enrol in any Bachelor’s or Master’s degree as required by condition 8202 since 20 January 2016.

14. On 4 January 2017, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) which invited the applicant to respond that the applicant had not been compliant with condition 8202 imposed on his visa.

15. The applicant emailed the Department on 11 January 2017 requesting an extension of time to respond to the NOICC. On 12 January 2017, the Department extended the time to respond to provide written reasons not to cancel the visa no later than 18 January 2018.

16. While the applicant responded by 17 January 2018 (in multiple emails), due to an administrative error the Department was required to re-issue the NOICC on 19 January 2017 and to respond to the invitation to comment by 27 January 2017.

17. The applicant forwarded emails on 25, 26 and 27 of January 2017 as responses to the NOICC issued on 19 January 2017.

18. Included in the response was a copy of Confirmation of Enrolment (CoE) indicating the applicant had enrolled on 27 January 2017 in a Bachelor of Business with the Australian School of Management. There are also two earlier CoEs dated 23 January 2017: Certificate II and III in EAL for English language studies at ALTEC. While the applicant provided written reasons to the Department as to his non-compliance with condition 8202, he did not contest that the grounds for cancellation did not exist.

19. A delegate on behalf of the Minister proceeded to cancel the visa on 3 February 2017. The applicant lodged to have the delegate’s cancellation decision review by the Tribunal on 7 February 2017 with the decision record attached.

20. It appears the applicant was not enrolled in a registered course between 20 January 2016 and 27 January 2017 – some twelve month, and that he was not compliant with condition 8202.

21. As outlined above, the applicant did not attended a scheduled hearing or submit any further evidence or arguments to the Tribunal as to whether the grounds for the cancellation of the applicant’s visa existed.

22. Based on the available evidence before the Tribunal, the applicant was not enrolled in a registered course between 20 January 2016 and 27 January 2017 – some twelve months.  Accordingly, the applicant has not complied with condition 8202(2).

23. As the applicant has not failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) does not arise. It follows that the visa cannot be cancelled.

    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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

25. The applicant emailed the Department on 11 January with a statement with his written reasons as to why the visa should not be cancelled.

26. The applicant submitted the following documents to the Department as part of his or her response to the NOICC being issued:

    ·     A copy of the applicant’s high school graduation date 17 June 2013;

    ·     A copy of a death certificate for the applicant’s father, Nguyen Van Dan, dated 18 May 2015 (with a certified translation)

    ·      A copy of outpatient medical records dated 13 January 2017 for Doan Thi Lam

    ·     A copy of an international student application from the Australian School of Management dated 13 January 2017;

    ·     A copy of an offer of admission letter for the Australian School of Management dated 16 January 2017;

    ·     A copy of a receipt for Ozlearn Group Pty Ltd (trading as ALTEC) , dated 17 January 2017;

    ·     A copy of a student agreement form with ATLECT dated 17 January 2017; and

    ·     Copies of the CoEs from the Australian School of Management and ALTEC (referred to above).

27. There is also an undated letter from the applicant’s mother in English submitted on 18 January 2018. In this letter, the applicant’s mother begs sympathy for her son to have the chance to complete his studies. It states that her son arrived in Australia to study when he was 18 years of age and that he did not have any relatives or friends but believed he could live independently. However when his father died of a stroke in May 2015, she decided not to be inform him as she feared it would disrupt his studies. She further states that she sent money to him for his new enrolments and rental money. She said that it was her husband’s wish that her son complete his studies. She also mentions that if the applicant returns to Vietnam he will be required to undertake military service and she fears the communist government harms and even kills young men during this conscripted service and tries to cover up the lost lives. 

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

28. According to the decision record, the delegate noted the year-long non-compliance with condition 8202 and the applicant’s written reason that he made an undertaking to complete his studies if given the chance. Overall the delegate assessed the purpose of the applicant being in Australia was not to study.  

29. The Tribunal notes that the applicant’s mother provided two written reasons to consider the applicant was a genuine student: that he arrived as an 18 year old when with the general family desire for her son to advance his studies. The Tribunal has places some weight on these reasons in favour of the visa not being cancelled. 

30. However, the Tribunal notes that the applicant has completed only two English language courses since he arrived in Australia according to PRISMS. The PRISMS record also indicates the applicant had enrolments for General English cancelled due to unsatisfactory attendance and a Certificate II in EAL cancelled due to disciplinary reasons. In his emailed statement dated 11 January 2017, the applicant claimed he undertook a package course which included English coursework but due to his lack of English, he changed enrolment. On face value, it does not seem consistent to argue that he struggled with English language skills but did not satisfactorily attend with English language coursework or was subjected to disciplinary proceedings. Had the applicant attended the hearing it would have further enquired into the reasons behind these sanctions. In the context of the applicant’s non-appearance at a scheduled hearing, the Tribunal places significant weight on this lack of academic achievement in his favour in cancelling the visa.

31. In evaluating these factors in the context of the applicant’s non-appearance at the Tribunal’s scheduled hearing strongly indicates to the Tribunal that the applicant is not a genuine temporary visa holder in Australia for the purposes of study, despite his family’s expectations. Based on the overall available evidence, the Tribunal places considerable weight towards his visa remaining cancelled as the applicant’s purpose of remaining in Australia was not study or that the applicant is a genuine student.

    The extent of compliance with visa conditions

32. The Tribunal notes the delegate considered the length of time of non-compliance of condition 8202 – in excess of twelve months - to be significant and gave it little weight in the applicant’s favour. The Tribunal concurs with this assessment and it places no significance on the applicant’s late enrolment in a Bachelor’s degree after the issuing of the NOICC. Nevertheless the Tribunal has no other evidence of non-compliance of any other condition with imposed on him as a student visa holder.

33. Overall the Tribunal gives these factors some weight towards the visa remaining cancelled.

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

34. The delegate’s decision noted the applicant did not raise any specific hardships that may be caused by the visa remaining cancelled. Nevertheless he accepted that there may be some hardships as a result of the cancellation.

35. The Tribunal notes that that there will be some, but not a considerable amount of, disappointment in the applicant not being able to complete his studies in Australia to his family. In fact, the applicant claimed his mother will not forgive him for his lack of study. He submitted medical evidence indicating she suffers from some psychological problems since the passing of the applicant’s husband.

36. However, in not attending the scheduled hearing the applicant demonstrated that he did not have any notable or significant or even severe hardships of any kind he wished to avoid by having the visa reinstated. He should be able to return to Vietnam to advance his studies with the support of his family. Accordingly, the Tribunal finds that the degree of hardship that may be caused by the visa remaining cancelled will not be considerable, notable or significant and it places little weight on this factor towards 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.

37. The Tribunal accepts the applicant’s father died in May 2015 based on the submitted documentary evidence, and that his mother has ongoing psychological or mental health symptoms since the passing of the applicant’s father.

38. The Tribunal however finds that written reasons advanced by the applicant and his mother that the applicant’s family did not disclose the death of the applicant’s father for a further six months to be fanciful and far-fetched. The death of an immediate family member, such as a father, is a significant event in a young adult’s life and there is no reason the applicant would have been denied deferment of studies based on compassionate grounds by an education provider. There is no evidence or claim that the applicant did so. In the context of the applicant’s non-appearance which indicates to the Tribunal that the applicant did not have much confidence in advancing this argument under probative conditions, the Tribunal finds that this specific claim had been contrived to augment the applicant’s otherwise weak reasons that his visa should not be cancelled.

39. None of these reasons probably explains the applicant’s lack of academic achievement prior to the passing of his father or his inability to remain enrolled in a Bachelor’s or Master’s degree as required by condition 8202. Neither did the applicant provide any further arguments or evidence, either written, documentary or oral, to the Tribunal to advance his claims there were no extenuating circumstances leading up to his non-enrolment.

40. Based on these finding and the available evidence, the Tribunal places considerable weight on this lack of explanation in favour of the visa remaining cancelled.

    Past and present conduct of the visa holder towards the Department

41. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department and it is noted that he responded to the NOICC issued in January 2017.  The Tribunal gives this some 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

42. 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

43. 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 forcibly removed. It accepts that he may be barred from re-entering Australia for up to three years. Furthermore the applicant is not guaranteed that his offshore visa will be approved as he may be subjected to the Public Interest Criterion 4013. He has presented no specific evidence in relation to this factor at all. Accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

44. 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

45. It is noted that the letter allegedly written by the applicant’s mother fears her son will be harmed during military service, although the applicant did not raise this specific matter in his written response to the issued NOICC. As the applicant is not barred from applying for a protection under s.48A, the Tribunal gives this factor very little weight in his favour in not having the visa cancelled.

    Other relevant considerations

46. It is noted that the applicant had ample opportunity leading up to the Tribunal’s hearing date to provide evidence and that he did not attend the hearing. His written arguments include a lack of maturity; however his non-attendance at a scheduled hearing in combination with his significant non-compliance with 8202 indicates to the Tribunal that the applicant places no weight on the applicant’s claimed immaturity as someone who is unlikely to uphold conditions imposed on him in the future and that the visa should remain cancelled.

    Conclusion

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

48. The applicant submitted some far-fetched written explanations supported by little documentary evidence to the Department not to cancel his visa. He submitted no oral, written or documentary evidence to the Tribunal at all to advance these arguments. The applicant’s significant non-compliance with condition 8202, his non-attendance at a scheduled hearing and the lack of academic advancement remains the most significant factors in finding that the applicant is not a genuine student who will uphold conditions imposed on him. These factors significantly outweigh any other factors in his favour.

49. Considering the evidence provided and on weighing the above factors and considering the accepted circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

50. The Tribunal affirms the decision 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.