Nguyen (Migration)

[2017] AATA 1726

Nguyen (Migration) [2017] AATA 1726 (20 September 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Thu Nguyen

CASE NUMBER:  1516021

DIBP REFERENCE(S):  BCC2015/2474357

MEMBER:Tigiilagi Eteuati

DATE OF DECISION:  20 September 2017

DATE CORRIGENDUM

SIGNED:12 October 2017

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

1. Paragraph 2 of the decision record states: The delegate cancelled the visa on the basis that the applicant had breached the condition of his visa that he be enrolled in a registered course.

2. Paragraph 2 of the decision record should state: The delegate cancelled the visa on the basis that the applicant had breached the condition of her visa that she be enrolled in a registered course.

   Tigiilagi Eteuati
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   APPLICANT:  Miss Thi Thu Nguyen

   CASE NUMBER:  1516021

   DIBP REFERENCE(S):  BCC2015/2474357

   MEMBER:Tigiilagi Eteuati

   DATE:20 September 2017

   PLACE OF DECISION:  Brisbane

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

   Statement made on 20 September 2017 at 4:02pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Applicant withdrew Higher Education enrolment – Enrolment in vocational and English language courses – English language difficulties – Three-year exclusion period

LEGISLATION

Migration Act 1958, s 116(1)(b)

Migration Regulation 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 November 2015 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 had breached the condition of his visa that he be 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 February 2017 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 her 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 affirmed.

   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 Minister’s delegate found that the applicant had not been enrolled in a registered course since 7 November 2014. This accords with records held by the Department and is conceded by the applicant.

10. 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

11. 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.

12. 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).

13. When the applicant arrived in Australia in September 2013 she was enrolled to study an English language course at Griffith University until May 2014 followed by a Diploma of Commerce and then a Bachelor of Commerce degree with QIBT.

14. The applicant said that she ceased studying the English course in May 2014 and did not complete the course. She said that she withdrew her enrolment at QIBT and Griffith University and enrolled in a number of vocational courses beginning with two English language courses at Harvest Education Technical College (HETC). The applicant said that in September 2014 she ceased studying her English course at HETC as she was finding the course difficult and she was stressed. She said that at the time she did not want to study and just wanted to stay at home. Her enrolment in all of her HETC courses was cancelled on 7 November 2014.

15. The Tribunal raised with the applicant its concern that given that the applicant had not been studying since September 2014, had not been enrolled in a course since November 2014 and had not even tried to enrol in any course since 2014 that the applicant may not have the desire to undertake a higher education course in Australia.

16. The Tribunal also indicated that the applicant’s failure to complete any of the English courses she undertook and her inability to speak almost any English despite living in Australia since 2013 may indicate that the applicant does not have the ability to successfully undertake a higher education course in Australia.

17. The applicant said that she wanted another chance and that if the cancellation of her visa was set aside she would like to study accounting. The Tribunal pointed out that the applicant did not appear to have the English language ability to study accounting at a University. The applicant said that she would have to learn English before commencing the course.

18. The applicant’s representative said that the applicant had ceased studying when she was young and immature and that she was now ready and willing to study. He said that in his experience it takes 6 months of time in Australia and extensive English study for students from Vietnam to be ready to study at University. The Tribunal pointed out that the applicant had been in Australia for a number of years and had undertaken more than 6 months of English language study and could not speak conversational English.

19. The Tribunal finds that the applicant does not have the desire or the ability to successfully undertake a higher education course in Australia. The applicant arrived in Australia in September 2013 and by September 2014 she had ceased attending classes. By this time she had failed to pass her English language course at Griffith University and had dropped out of her HETC courses. The applicant has not been enrolled in any course in Australia since November 2014 and has not even attempted to enrol in a course since 2014. The applicant insists that she has not been working in Australia and has been provided for by her parents.

20. 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 higher education course in Australia. 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. However, the applicant had every chance to study in Australia and decided to stop studying altogether within a year of arriving in Australia and has made no attempts to even enrol in a course since.

21. The Tribunal finds that the applicant’s lack of desire and ability to successfully undertake higher education courses in Australia heavily outweighs any hardship that she or her family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

23. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector 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.