NGUYEN (Migration)

[2017] AATA 2474

NGUYEN (Migration) [2017] AATA 2474 (6 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms THI DAO NGUYEN

CASE NUMBER:  1701484

DIBP REFERENCE(S):  BCC2016/4334400

MEMBER:Tigiilagi Eteuati

DATE:6 November 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 06 November 2017 at 9:45pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Cancelled enrolment in the course – Poor English language skills – Lack of desire and ability to successfully undertake a registered course

LEGISLATION
Migration Act 1958, s 116
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 23 January 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 1 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence the applicant’s husband. 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 breached condition 8202 when her enrolment in a general English course expired on 11 April 2016. The applicant conceded that she had not been enrolled in a registered course since this time.

9. 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

10. 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.

11. 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).

12. At the hearing the applicant said that when she first arrived in Australia in July 2013 she was enrolled in an English language course, a Foundation course and an accounting course. She said that she attended the English Language course for 5 or 6 months but was unable to complete the course. She said that she cancelled her enrolment in the course and that her other enrolments were consequently cancelled.

13. The applicant said that since then she has enrolled in courses every year but has never attended class. She said that she enrolled in courses every year so that her student visa would not be cancelled. When the Tribunal later raised its concern that the applicant did not have the will or desire to study in Australia, the applicant gave an additional reason for not attending classes. She said that once she arrived in Australia her parents were unable to pay for her tuition fees.

14. It was apparent at the hearing that the applicant had very poor English language skills and she had to use the interpreter to understand what was being said in English.

15. Tribunal asked the applicant whether she or any of her family members would suffer hardship if her visa remained cancelled. The applicant said that she would be likely to be separated from her husband if her visa remained cancelled. She said that she wanted to hold a student visa so that she could complete her studies and make her parents proud.

16. The applicant’s husband gave evidence that they would both suffer hardship if the applicant’s visa remained cancelled as he did not plan on moving to Vietnam and the couple would be separated for 3 years before his wife was eligible to apply for another visa. He said that if his wife regained her visa she would complete her tertiary studies in Australia before returning to Vietnam to establish a business. He said that they planned that once that business was successful, that his wife would migrate to Australia to live with him.

17. The Tribunal raised with the applicant its concern that, as she had not attended classes apart from attending an English language course for 5 or 6 months when she first arrived in Australia in 2013, and admitted to only enrolling in courses subsequently to avoid visa cancellation, the applicant did not have the will or desire to study in Australia.

18. The applicant said that she wanted a chance to study and that she now wished to study.

19. The Tribunal raised its concern that, as the applicant had very poor English language skills, that the applicant had not passed any courses since her arrival and her parents could not afford to pay her fees, the applicant may not have the ability to successfully undertake a higher education course in Australia. The applicant said that her husband, who worked in a fish shop, would pay her fees and that she would take an English language course to improve her English language skills.

20. The Tribunal finds that the applicant does not have the desire or ability to successfully undertake registered courses in Australia. The applicant’s lack of desire is evidenced by the applicant’s admission that she had not attended classes apart from attending an English language course for 5 or 6 months when she first arrived in Australia in 2013, and her admission to only enrolling in courses subsequently to avoid visa cancellation.

21. The applicant’s lack of ability to successfully undertake a registered course in Australia is evidenced by the fact that the applicant has been unable to successfully complete any course that she has been enrolled in since she was first granted a student visa in 2013, that she has very poor English language skills and her parents could not afford to pay her fees. The Tribunal has serious doubts that the applicant’s husband will be able to afford to pay the applicant’s tuition fees for a higher education course.

22. The Tribunal is willing to accept that the applicant and her family members may experience disappointment that the applicant’s visa was cancelled before she was able to complete a course in Australia. The Tribunal is willing to accept that both the applicant and her husband will suffer hardship as they will be separated as a result of the cancellation of the applicant’s visa. The applicant’s husband has indicated that he is unwilling to relocate to Vietnam with the applicant and will remain in Australia if the applicant’s visa remains cancelled. The Tribunal has also considered that, as the applicant’s visa has been cancelled, she may have to wait for some time to be granted another visa in Australia.

23. The Tribunal finds that the applicant’s lack of desire and ability to successfully undertake a registered course in Australia outweighs any hardship that she, her husband or her family members may face because of the cancellation of the applicant’s visa.

24. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

25. 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.