Nguyen (Migration)

[2018] AATA 405

Nguyen (Migration) [2018] AATA 405 (23 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Ngoc Nguyen

CASE NUMBER:  1703875

DIBP REFERENCE(S):  BCC2017/320367

MEMBER:Tigiilagi Eteuati

DATE:23 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 23 February 2018 at 11:43am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Low attendance to classes – Abandonment of studies – No attempt to enrol or study in a course – Unable to afford fees – Limited English language skills – Financial support solely by Australians

LEGISLATION
Migration Act 1958, s 116, 359AA
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 28 February 2017 made by a delegate of the Minister for Immigration 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 breached the condition of her visa to remain enrolled in a registered course. 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 15 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s boyfriend. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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. The delegate found that the applicant had not been enrolled in a registered course since18 July 2016. This was admitted by the applicant and accords with records held by the Department. 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).

   Consideration of the discretion to cancel the visa

9. 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.

10. 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 matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

11. When the applicant arrived in Australia in February 2016 she was enrolled in an English language course and a Diploma of Business to be followed by a Bachelor of Commerce degree. This information was put to the applicant for comment or response in accordance with section 359AA as, apart from the English language course, the applicant could not remember the courses she was enrolled in when she arrived in Australia. The applicant said that she had suffered from stress in Australia and that is why she could not remember what she had been enrolled in. The Tribunal also put to the applicant pursuant to section 359AA information which indicated that the applicant’s enrolment in the English language course was cancelled because of unsatisfactory course attendance.

12. She said that she stopped attending class because of stress and strain caused by the death of her maternal grandfather in April 2016. The diploma and Bachelor courses were consequentially cancelled. She claimed that she did not re-enrol in another course because her paternal grandmother also died in August 2016. At first, the applicant admitted that she never attended any classes in Australia. The Tribunal indicated that while she claimed that the reason she ceased studying was because of the stress caused by her grandfather’s death the English course began in February 2016, her grandfather passed away in April 2016 and she had told the Tribunal that she only discovered that her grandfather was ill in April 2016. The applicant then changed her evidence and said that she had been attending class prior to her grandfather passing away.

13. The applicant said that the other reason that she ceased studying and did not re-enrol was because her family had to pay for medical and funeral expenses for her grandparents and were unable to assist the applicant financially from that point. She said that her parents had paid money for her accommodation from February until June 2016, paid some money towards her initial English language course and gave her $2000 for her expenses. She said that her landlord paid for her rent from June until around October when she moved to Brisbane. She said that she tried to obtain employment but has been unable to find any employment in Australia during her entire stay in Australia. The applicant and her boyfriend indicated that since the applicant begun living with her boyfriend in October 2016, he had been fully supporting her financially by working as a “nail technician” and in that time her family had not contributed anything for the applicant financially. The applicant provided a copy of her boyfriend’s bank account balance indicating that her boyfriend had $4,853.07 in his account.

14. The applicant also indicated that she was ill in 2016 and that this was another reason why she could not study. She provided a medical certificate dated 6 June 2016 which indicated that the applicant had been suffering from a “viral illness” which the applicant had claimed that she had been suffering for lethargy and headaches of a few months and that she was unfit to study for 3 days from 4 June 2016 to 6 June 2016.

15. The applicant said that she moved from Adelaide to Brisbane in 2016 and met her boyfriend in Brisbane in October 2016. She said that they she entered into a romantic relationship with her boyfriend and had been living with him since October 2016. She said that her boyfriend was her “saviour” and after meeting him she was more comfortable with her life and that her distress subsided.

16. The applicant indicated that she, her boyfriend and her family would suffer hardship if her visa remained cancelled. She said that her parents had been supporting her in Australia and implied that the money they had spent would be wasted if her visa was cancelled. She said that if her visa remained cancelled she would have to study in Vietnam. She also indicated that she and her boyfriend would suffer hardship as they may become separated.

17. The applicant’s boyfriend said that he loved the applicant and would suffer hardship if the applicant’s visa remained cancelled. He said that if her visa remained cancelled he would travel with her to Vietnam but would have to return to Australia as he has employment here and may not be able to obtain a visa to live permanently in Vietnam. The applicant’s boyfriend indicated that if the applicant were allowed to stay in Australia, he would support her financially and try to assist in paying for her courses. He said that he had found an English language course which was significantly cheaper than the course she had originally been enrolled in which had cost $12,000. The Tribunal pointed out that the applicant had held a visa requiring her to remain enrolled in a higher education course and that in addition to the English language course the applicant had been enrolled in a Diploma costing over $20,000 and a bachelor degree costing $74,000. The Tribunal indicated that it appeared unlikely that the applicant would be able to afford to undertake studies in Australia. The applicant’s boyfriend said that he could not afford these courses on his own but anticipated that the applicant’s family would assist with her course fees.

18. The Tribunal raised with the applicant its concern that because the applicant had attended few, if any, classes before ceasing her studies in April 2016 and had not even attempted to enrol in another course since, despite her distress subsiding when she met her boyfriend in October 2016, she may not have the desire to undertake a higher education course in Australia.

19. The applicant said that she did want to study in Australia and would do so if given the opportunity.

20. The Tribunal raised its concern that given that the applicant had not been able to pass even an English language course, had been in Australia for some 2 years and had very limited English language skills and that she had been unable to pay for her courses in the past and there was not obvious way that she would be able to pay for courses, that she may not have the ability to undertake higher education courses in Australia.

21. The applicant said that her parents were now in a position to assist with her course fees. She said that if she were allowed the opportunity to stay she would put all her effort into her studies.

22. The Tribunal has decided to affirm the decision to cancel the applicant’s visa.

23. The Tribunal considers that, as the applicant had attended few, if any classes before ceasing her studies in April 2016 and had not even attempted to enrol in another course since, despite her distress subsiding when she met her boyfriend in October 2016, that she does not have the desire to undertake a higher education course in Australia. While the Tribunal accepts that the applicant suffered “stress and strain” from the passing of two of her grandparents, she was granted a visa to come to Australia to study. The fact that she has not even attempted to study or enrol in a course since April 2016 strongly suggests that the applicant has no desire to study. If she was genuine about her intention to study she could have returned to Vietnam to study in 2016 and also spent time with her grieving family and her grandmother before she passed away. However, she has remained in Australia supported solely by the generosity of Australians, first her landlord and then her boyfriend, has not attempted to study and neither she nor her family have done anything to contribute to her living expenses. Even before the cancellation of her visa, she never worked to help support herself. The Tribunal places very little weight on the applicant having a virus which prevented her from studying for 3 days in June 2016 long after she ceased all studies in April 2016.

24. In addition, the Tribunal considers that, given that the applicant had not been able to pass even an English language course, had been in Australia for some 2 years and had very limited English language skills, that she had been unable to pay for her courses in the past and there was no obvious way that she would be able to pay for courses, that she does not have the ability to undertake higher education courses in Australia.

25. The Tribunal does not accept that the applicant’s boyfriend will be able to pay the tens of thousands of dollars in fees required for the applicant’s courses on his salary as a nail technician. In addition, seeing that the applicant’s family have paid nothing towards the applicant’s expenses for almost 2 years, the Tribunal has no confidence that they can or will begin contributing to the applicant’s education now.

26. The Tribunal accepts that the couple would face difficulty if the applicant’s visa remained cancelled. It would mean that the applicant would have to leave Australia and, under normal circumstances, would not be able to re-apply for another visa for three years. The applicant’s boyfriend said that he would have to continue to live in Australia, which would mean that the couple would be separated. The Tribunal considers that this consideration weighs in favour of the applicant.

27. The Tribunal considers that the delegate made the correct decision in cancelling the applicant’s visa and the Tribunal considers that this remains the correct decision. The applicant did not comply with condition 8202.  Her visa was granted in order from her to study courses leading to a bachelor degree and she abandoned all other study within 2 months of arriving in Australia. In these circumstances, the Tribunal has decided that although the applicant and her boyfriend will suffer a degree of hardship if the visa remains cancelled, that the applicant’s failure to comply with the conditions of her visa and her lack of desire and ability to undertake courses in Australia heavily outweigh all considerations weighing against cancellation.

    DECISION

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

    Tigiilagi Eteuati
    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.