Pham (Migration)

[2024] AATA 3078

Pham (Migration) [2024] AATA 3078 (19 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chau Ngoc Phuc Pham

REPRESENTATIVE:  Mr Linh Minh Tran (MARN: 0958538)

CASE NUMBER:  2305855

HOME AFFAIRS REFERENCE(S):          BCC2023/454626

MEMBER:Penelope Hunter

DATE:19 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 19 August 2024 at 11:11am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased studies – medical condition – family bereavement – applicant resumed studies – financial hardship – decision under review set aside     

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 April 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant was found not to have complied with a condition of his 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 31 July 2024 via MS Teams video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review, and his representative also attended the hearing.

4. 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

   Background

5. The applicant is a 23 year old single male citizen of Vietnam. He was granted a visa on 3 April 2020 which was valid until 15 March 2025 to enable him to stay and undertake study in Australia. This visa was subject to conditions, including condition 8202.

6. On 27 March 2023, the Department wrote to the Applicant with a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, as the Provider Registration and International Student Management System (PRISMS) records of the applicant indicated that his last enrolment in a registered course was cancelled on 19 October 2021. This was considered to indicate that the applicant may have not complied with the requirements of condition 8202(2)(a) of his visa. The applicant was informed that this may be a ground for cancellation of his visa and he was invited to comment on this and another relevant matter.

7. On 31 March 2023, the applicant responded by email and raised the following matters (in summary):

   i.After completing year 11 and 12 at Woodville High Scholl he was accepted into a university transfer course in TAFE South Australia. He studied a Certificate IV in Information Technology but it was too difficult for him so he applied for another course.

   ii.He took enrolment in a Certificate III in Light Vehicle Technology however the course did not commence until 27 April 2021, so he undertook an English course from 8 February 2021 while waiting for this to commence. 

   iii.Due to the COVID-19 pandemic his Certificate III in Light Vehicle Technology was delivered by online learning. He claimed that because he did not know much about technology he did not complete course targets.

   iv.The pandemic put a lot of pressure on him and he felt scared and stressed all the time and it affected his studies.

   v.On 12 January 2022 he caught COVID and he thought he would die and could not concentrate on his studies. He had a lot of bad symptoms and could not get out of bed.

   vi.On 20 January 2022 his grandmother died due to COVID. He was very close to his grandmother, she had been taking care of him. This left him traumatised, it affected him psychologically and he neglected everything. He could not continue with his studies and he could not think of anything else. In addition, because he continued to suffer bad health he had to undertake a lot of COVID testing.

   vii.In 2023 he was feeling better and his family sympathised with him. He decided to re-enrol. While looking for a new course he received the letter from the Department about his visa.

   viii.He was very scared because he knew that he had violated the rules of his visa. He really wanted to study in Australia and he regretted the things he had done in the past.

8. The applicant also presented the following documents:

   i.A Confirmation of Enrolment (CoE) a Certificate IV in Information Technology for the course commencing on 22 January 2020, created on 13 January 2020.

   ii.A CoE in a Certificate IV in Light Vehicle Technology for the course commencing on 27 April 2021, created on 27 April 2021.

   iii.A CoE in a Certificate IV in Automotive Mechanical Diagnosis for a course commencing on 2 May 2022 and created on 27 April 2021.

   iv.A death certificate of Anh Ngog Nguyen, date of death 20 January 2022.

   v.Screenshots in relation to a positive COVID-19 test text message dated 12 January 2022 and negative  COVID-19 test text message dated 7 June 2021 and 31 August 2021.

   vi.Letters of offer to the applicant dated 20 December 2019 and 2 February 2021 for courses at TAFE South Australia.

   vii.A letter from the Department to the applicant dated 3 April 2020 regarding the grant of his student visa.

   viii.Woodville High School reports for the applicant for years 11 and 12.

9. On 3 April 2023 the applicant provided a further submission to the Department advising that he had been accepted by Alliance College and he was looking forward to studying. The submission was accompanied by a conditional letter of offer from Alliance College issued 31 March 2023, in a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology.

10. On 6 April 2023 the Department wrote to the applicant with a further NOICC dated 6 April 2023 under s 116(1)(b) of the Act, as the Provider Registration and International Student Management System (PRISMS) records of the applicant indicated that his last enrolment in a registered was cancelled on 19 October 2021. This was considered to indicate that the applicant may have not complied with the requirements of condition 8202(2)(a) of his visa. The applicant was informed that this may be a ground for cancellation of his visa and he was invited to comment on this and another relevant matter.

11. On 6 April 2023, the applicant responded with a further copy of his previous submissions, and a copy of a Statement of Attainment issued by TAFE NSW dated 28 February 2023.

12. The delegate found that the applicant had not complied with condition 8202, and after considering the response and submissions of the applicant determined that, the grounds for cancelling the visa outweighed the reasons not to, and cancelled the visa.

13. The Tribunal received an application for review from the applicant on 27 April 2023, together with a copy of the decision record of the delegate under review.

14. On 24 July 2024, the Tribunal received submissions from the representative of the applicant together with a statutory declaration of the applicant, further copies of his CoEs and a copy of the death certificate of his grandmother. In his statutory declaration the applicant set out the following additional information:

    i.He had obtained an enrolment in a Certificate III in Light Vehicle Mechanical Technology on 24 April 2023, he understood that the time he was not enrolled from 19 October 2021 was still unaccounted for. Up until the date of his non-compliance he had followed all the rules of his visa and done his best in his studies.

    ii.It was during his Certificate III Light Vehicle course in 2021 that his studies took a decline. Up until this time he had been a diligent student. He was scared and anxious when the COVID-19 pandemic struck, all he heard through the media and global news was about people falling fatally ill and dying. The vaccinations were still new and his culture was paranoid about the side effects. He was afraid to leave home and take care of himself in a country on his own.

    iii.His course switched to online learning and he had never before undertaken an online course. He did not know how to navigate the new programs and technology. His course was also normally undertaken in person with practicals so it was a huge change, and the language barrier had him at a disadvantage. Due to difficulties with his course he began to fall behind in course targets. He was also hearing about friends and family in Vietnam falling ill and close to death and this affected his studies

    iv.On 19 October 2021 he received notice of cancellation of his enrolment. He was devastated but not sure what to do. He was afraid and humiliated and did not obtain advice.

    v.While COVID-19 restrictions ended in October 2021, there was still significant stigma surrounding the virus and mask mandates. He was living with his grandmother and it was still terrifying for them to go out in public.

    vi.He had fallen into a deep depression and could barely get out of bed most days. He wished that he could get things back on track but was too afraid to leave the house. He did not know where to get advice in relation to his studies.

    vii.In January 2022 he contracted COVID-19 after leaving the house to get only essentials. He fell very ill and could not leave his bed or do anything on his own. The only person taking care of him was his grandmother, and he was the reason that she subsequently contracted the COVID-19 virus. Her  death was traumatising to him. He blamed himself for her death and believed that his family may also. He had lost the most important person to him in his life.

    viii.His mental health further deteriorated and his immune system was weak because he was not caring for himself due to grief. He had to check multiple times if he was positive for the virus.

    ix.It was not until the begin of 2023 that he began to receive some support from his family. He had been trying to re-enrol when he received his notice of visa cancellation. This took time and he disagreed with the findings of the delegate that he only obtained an offer of enrolment to avoid cancellation. If he had no intention to study he would not have enrolled and paid the up front fees. His course started on 24 April 2023 and he will complete his studies on 19 October 2025.

15. On 31 July 2024 the applicant submitted a copy of his birth certificate, a letter of financial support from his mother, evidence of deposits held by his mother with VP Bank, and screenshots of his course progress in the Certificate III in Light Vehicle Mechanical Technology. 

    Did the applicant comply with Condition 8202?

16. 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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

17. 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 full time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

19. The applicant confirmed at the hearing that he was aware that his student visa was subject to conditions, which included that he be enrolled in a full time registered course.

20. The applicant in his submissions to the Department has not disputed that he was not enrolled in a full time registered course between 19 October 2021 up until the time issue of the second NOICC of 6 April 2023. This is also not disputed in his submissions to the Tribunal and he confirmed at the hearing that he did not dispute that he did not have a CoE in a registered course of study at the time of the delegate’s decision on 24 April 2023.

21. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

22. 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 Procedural Instruction ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

23. The purpose of the applicant’s travel and stay in Australia was so that he could undertake study. The applicant said that he had been in Australia for seven years. He completed high school and it was his intention, and that of his family, that he undertake professional studies in Australia. He struggled with his first attempt at post-secondary studies but genuinely desired Australian qualifications.

24. At the time of his visa application he was proposing studies in Information Technology (IT) leading to a bachelor level qualification. The applicant undertook his initial certificate course but prior to the visa cancellation had transferred to automotive studies. He told the Tribunal that he was not suited to study in IT.

25. Despite the visa cancellation the applicant has obtained a further enrolment in the Certificate III in Light Vehicle Mechanical Technology which commenced on 24 April 2023. He has also obtained enrolments in the Certificate IV in Automotive Mechanical Diagnosis and the Diploma of Automotive Technology. It was the evidence of the applicant at hearing that he was progressing successfully with these studies, he had paid the majority of his fees towards the Certificate III course and he was just waiting to complete his work practice component which as scheduled for October 2024. He claimed to be on track for the completion of his studies in October 2025, at which time he intended to return to his family in Vietnam and open a business.

26. The Tribunal has considered the evidence and submissions provided by the applicant, it accepts the evidence of the applicant that he has resumed his studies. It is acknowledged that he paid a significant portion of the costs of his studies in the Certificate III in Light Vehicle Mechanical Technology. It has had regards to the evidence he has submitted of the satisfactory completion of various assessments associated with his current study, and his claims that only the practical component of this course remains to be completed. The applicant’s program of study is consistent with that he proposed prior to the visa cancellation decision, if his studies are to continue it will only extend his time onshore a number of months over the time of the original visa grant. It is accepted that the applicant’s proposed courses will enhance his career and improve his remuneration prospects in his home country.

27. On the evidence it appears that the applicant genuinely desires Australian qualifications. It is accepted that the applicant’s ongoing study is a compelling need for him to remain to be able to complete his qualifications.

28. On balance this factor weighs against the cancellation of the visa.

    The extent of compliance with visa conditions

29. As set out above the duration of the applicant’s non-compliance was considerable from October 2021 to April  2023. The applicant has acknowledged that he was aware it was a condition of his visa that he maintain enrolment. The duration of the applicant’s non-compliance is a matter of considerable concern and engaging in study goes to the core purpose of the visa.

30. There is no evidence before the Tribunal that the applicant has not complied with any other conditions of the visa under consideration.

31. The Tribunal considers that this factor weighs in favour of the cancellation of the visa.

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

32. If the visa remains cancelled, and if he is required to depart Australia, the applicant will be unable to complete his current course and his program of courses. It is accepted that in these circumstance that the applicant, and his family, will experience financial hardship having invested in the applicant’s education from his high school level leading to the award of a professional qualification.

33. The Tribunal further acknowledges and accepts the claims of the applicant that if the visa remains cancelled, and if he is required to depart Australia it will also cause emotional and psychological hardship. The applicant had lived with his grandmother and grandfather since his arrival as a teenager in Australia. He conveyed to the Tribunal that he believes it will cause great family dishonour for him not to achieve his desired qualifications. Specifically, the applicant also expressed to the Tribunal that he feels he will be dishonouring the wish of his grandmother for him to become a success. Further, he said that his mother was the principal of a well-known school and she also wished for him to succeed.

34. On balance this factor weighs against the cancellation of the visa.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

35. At the hearing the Tribunal acknowledged the claims and evidence of the applicant regarding his diagnosis of COVID and the death of his grandmother in January 2022, however this occurred after the circumstance which led to the cancellation of his enrolment in October 2019.  The applicant told the Tribunal that when his studies switched to online during the pandemic he struggled to adapt. Although he had undertaken secondary studies in Australia, he still struggled with his English. He had already switched to motor vehicle studies because he preferred practical courses. He had difficulties with online elements of his course and could not complete practical elements of his course because he had not been vaccinated and he was worried about the virus. He said that he tried his best to progress through his course online but could not keep up. His unsatisfactory progress led to his enrolment being cancelled. He had planned to resume his studies again at the beginning of 2022, then he caught COVID and his grandmother died in that year.

36. The applicant said that he felt responsible for his grandmother contracting COVID, he said that his grandparents had been in Australia to take care of him. He had lived with his grandmother ever since his arrival. He told the Tribunal that he felt that he was a killer and when she died he lost all his motivation. His grandfather returned to Vietnam for his grandmother’s funeral. He provided for the applicant financially but the applicant did not return because he was told it was his grandmother’s wishes he complete his study. He did not know how to share with his family what was going on with his study. The applicant acknowledged that it was a long time that he was not enrolled, however he claimed that he lost track of time and he was not aware of time passing. He did not want to see anyone because he was still afraid of the virus and his health was not good. He did not want to contract COVID again or risk giving anyone else the virus.

1. His grandfather returned to Australia in January 2023, at that time the applicant said that he told him what had gone on with his study. With the help of his grandfather he began to get things back on track. The applicant denied that he had re-enrolled in study purely for the purposes of the visa. He did so because he claimed he desired the qualifications, he wished to fulfil his family’s expectation of him and he would not have continued to study and paid fees if he was not interested in study and just wished to remain onshore. He was not working and was completely supported by his family.

2. The Tribunal accepts that the circumstances of the pandemic were outside the control of the applicant. It accepts that this created challenges for him with his studies. It also accepts the evidence that the applicant’s grandmother passed during the period he was not enrolled. There is no evidence to contradict the claims of the applicant that died as a consequence of complications arising from her catching the COVID-19 virus. It accepts in these circumstances the applicant would feel some responsibility for her passing and that this would have a significant effect on him given his age. It is not accepted however that the applicant was unable to approach his education provider for assistance with his studies or that it was not within his control to seek assistance with his grief and ongoing mental health issues. In the absence of further medical evidence regarding his mental health issues, the Tribunal is unable to make a finding that the applicant was unable to engage in study for the relevant period he was not enrolled.

3. Overall the Tribunal does accept that there were some factors outside the control of the applicant that led to the breach and gives them some weight in favour of not cancelling the visa.

   Past and present behaviour of the visa holder towards the Department

4. There is no evidence that the applicant has not been cooperative in his dealings with the Department.

5. The Tribunal gives this factor some weight in favour of not cancelling the visa.

   Whether there would be consequential cancellations under s 140

6. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa remained cancelled. There is no weight attributed to this factor.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

7. There are mandatory legal consequences that may apply in the case of visa cancellation, including a difficulty obtaining a further visa. If the visa is cancelled the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties obtaining any further visas in Australia. Due to the operation of PIC 4013, the applicant would also be unable to be granted further visas offshore for three years from the date of cancellation. The applicant said that he just wanted to complete an Australian qualification, his family had high hopes for him and if the visa remained cancelled he would lose this opportunity.

8. The applicant also told the Tribunal that if the visa remained cancelled and he had exhausted or ceased all lawful avenues of review, he would abide by any lawful direction to depart. The Tribunal is satisfied in these circumstances that the likelihood of the applicant being detained is remote.

9. It is accepted that cancellation would have further consequences and these would limit his options to immediately return to Australia, complete his proposed study or applying for a different kind of visa. This however is the intended consequence of cancellation.

10. The Tribunal gives this factor this neutral weight.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation 

11. The applicant is a citizen of Vietnam. The Tribunal asked the applicant if he had any fears about returning to his home country and he claimed that his studies had cost a lot of money for his family and he returned without his qualifications he would face considerable pressure. The applicant has not made and claims, and there is no evidence before the Tribunal, that any international obligations are engaged.

12. He does not have any children whose interests would be affected by the cancellation of his visa.

13. The Tribunal gives this factor no weight

    Conclusion

14. The Tribunal has considered the applicant’s circumstances and weighed the relevant considerations as discussed above. In balancing these matter it is satisfied that as a whole there are aspects that are significantly favourable to the applicant as discussed above. Particularly considering the reasons the grounds for cancellation arose, the purpose of the visa and the applicant’s stay in Australia, the degree of hardship and his cooperation with the Department.

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

    DECISION

16. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Penelope Hunter
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.