Pham (Migration)

[2019] AATA 3661

Pham (Migration) [2019] AATA 3661 (31 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Linh Thuy Pham
Mr The Hung Do

CASE NUMBER:  1837123

HOME AFFAIRS REFERENCE(S):           BCC2018/4066066

MEMBER:Amanda Pearson

DATE:31 July 2019

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 31 July 2019 at 2:09pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – suffered significant financial loss – mental health issues – strong commitment to studying – genuine attempt of deferment – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
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 11 December 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2.    The delegate cancelled the visa on the basis that the first named applicant, Mrs Linh Thuy Pham, was not enrolled in a registered course from 30 November 2017 until 28 November 2018. In applying for review to the Administrative Appeals Tribunal, the first named applicant also provided a copy of the delegate’s decision. 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.    For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant, Mr The Hung Do.

4.    The applicants appeared before the Tribunal on 26 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5.    The applicants were represented in relation to the review by their registered migration agent.

6.    For the following reasons, the Tribunal has concluded that the decision to cancel the first named applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the first named applicant, Mrs Linh Thuy Pham (referred to from now on as “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?

8.    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).

9.    On the 24 July 2019 the applicant provided the following documents to the Tribunal:

·A doctor’s certificate dated 6 December 2017 stating that the applicant should defer her MBA course in her first trimester of 2018 due to her health issues.

·A doctor’s certificate dated 20 November 2018 stating that the applicant is medically fit to return to her MBA studies.

·A doctor’s certificate dated 26 November 2018 stating that the applicant is medically fit to be undertaking the third trimester of her MBA course in 2018. Furthermore, the certificate states that the applicant’s history was consistent with it being advisable for her to have deferred her second trimester of the MBA course in 2018, as well as the first trimester, as per the certificate dated 6 December 2017.

·A confirmation letter from the Queen’s College dated 22 July 2019 confirming that the applicant is enrolled in a Diploma of Leadership and Management course with a start date of 26 November 2018 and an end date of 24 November 2019.

·A statutory declaration from Mr Andy Nguyen and Ms Kathy Ta (the applicant’s house mates) dated 23 July 2019, the applicant’s housemates and friends.   

1. During the hearing on 26 July 2019, the applicant provided the following documents to the Tribunal:

   ·A photocopy of her Bachelor of Science Degree in the course of study prescribed in business (majoring in finance) certificate issued 9 May 2009 from the Iowa State University of Science and Technology.

   ·A photocopy of her Bachelor of Applied Science (Built Environment) certificate issued September 2015 from the Holmesglen Institute.

   ·A photocopy of her official academic transcript in respect to her Bachelor of Applied Science (Built Environment) dated 27 February 2017.

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

3. By the applicant’s own admission and on the evidence before the Tribunal, the applicant had not complied with a condition of her student visa. The applicant indicated to the Tribunal she was not enrolled with the Kaplan Business School in respect to a Master of Business Administration from 30 November 2017 until 28 November 2018 and as such she was not enrolled in a registered course.  Accordingly, the applicant has not complied with condition 8202(2) for nearly a twelve month period.

Consideration of the discretion to cancel the visa

1. 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’

Background

14.    The applicant confirmed she arrived in Australia in or around February 2011. She was born in Vietnam on 8 November 1987 and is 31 years of age.  She is married to Mr The Hung Do, the second named applicant. The applicant does not have any children.

15.    The applicant gave evidence that she lived in Vietnam until she was 16 years of age whereby she then completed her Year 11, 12 and undergraduate studies in the United States State of Iowa. She completed a Bachelor of Science Degree in the course of study prescribed in Business (majoring in Business) on 9 May 2009 at the Iowa State University of Science and Technology.  She claimed to the Tribunal that she was A minus student.

16.    The applicant confirmed she came to Australia in February 2011 with the objective to study.  She stated to the Tribunal that she had an interest in construction and property management. Since arriving in Australia, she has completed a General English course and Bachelor of Applied Science (Built Environment) at the Holmesglen Institute.  

17.    In 2017, the applicant enrolled in a Masters of Business Administration at the Kaplan Business School.

18.    The applicant explained that during 2017 she and her husband experienced personal issues that prevented her from being able to study.  She told the Tribunal that prior to these personal issues she had always been a high achiever.  However, during 2017 she was not able to perform in her studies.

19.    The applicant claimed that, prior to 30 November 2017, her husband and herself had purchased a home off the plan. After purchasing a home off the plan, they lost their deposit of AUS E$150,000 because the builder became bankrupt. The applicant and her husband were not able to recover their deposit monies from the builder through the court process.

20.    The applicant spoke about the impact of this event.  She said this experience was very difficult for her because she lost concentration and was stressed about losing her money.  She claimed she lost trust and faith in people generally.  She stated the loss of deposit monies also caused a considerable strain for her family. She claims it was after this experience when her depression started in November 2017.  The applicant told the Tribunal that she suffered depression until approximately September 2018.  The applicant was asked by the Tribunal to describe her depression.  The applicant responded that she was not happy during that time, she did not want to be around anyone, she could not get out of bed and that she suffered headaches.

21.    The applicant then told the Tribunal that from 30 November 2017 until 28 November 2018 she was not able to study her Masters of Business Administration at the Kaplan Business School because of her mental health issues.

22.    The applicant was asked by the Tribunal if she saw a psychologist for her mental health issues.  The applicant claimed she was diagnosed with depression on 6 December 2017 by her general practitioner, Dr Marie Schmidt, at the Toorak Clinic in Melbourne.  Dr Schmidt issued her a medical certificate claiming she had health issues that prevented her from studying in the first trimester of 2018. She stated that Dr Schmidt referred her to see a psychologist at Psychology Melbourne. The applicant then told the Tribunal that she did not attend Psychology Melbourne because she could not personally accept the stigma of possessing a mental illness.  The applicant also claimed that she could not afford a psychologist because she did not have any health insurance and she had recently lost her off the plan home build deposit monies of AUS E$150,000.

23.    The Tribunal asked as to why she did not defer her Masters of Business Administration.  The applicant responded that she posted the medical certificate issued by Dr Schmidt on 6 December 2017 to the Kaplan Business School head office as an attempt to defer her studies.  She claimed that she was never provided a response to posting the medical certificate and did not follow it up with Kaplan Business School because she was already suffering depression.

24.    The Tribunal asked the applicant again as to how she has overcome her depression.  The applicant told the Tribunal that by virtue of a recommendation made by her housemate Ms Kathy Ta, she met a Buddhist monk, Mr Thich Minh Niem, at Quang Minh Monastery in Sunshine Victoria to discuss the benefits of meditation. She claimed that she initially did not pursue meditation as she was in denial about it.  However, she told the Tribunal that because her depression had deteriorated in May and June 2018, she was of the opinion that at that period of her life, she had no alternative but to consider meditation.

25.    The applicant told the Tribunal that she commenced meditation in June 2018.  She further told the Tribunal that she attended most mornings initially because she found it assisted her to deal with her depression. She claimed to the Tribunal that she now participates twice weekly in meditation and sees Mr Niem for individual teaching and counselling. She said that is enough for her. She told the Tribunal that meditation helped her overcome her depression. She said she is much better.

26.    She told the Tribunal that her housemates, Ms Ta and Mr Nguyen, introduced her to meditation to improve her physical and mental health.

27.    The applicant relied upon statutory declarations prepared from Ms Ta and Mr Nguyen to substantiate her assertions to the Tribunal. In their declarations, Ms Ta and Mr Nguyen confirmed that:

·the applicant was a dedicated student;

·towards the end of 2017, the applicant’s physical and mental health was affected in that she suffered anxiety, would not leave the house and her bedroom;

·the applicant was unfit to study at the end of 2017;

·the applicant’s physical and mental health worsened during 2018;  

·they both introduced the applicant to meditation to improve the applicant’s physical and mental health; and

·at the end of 2018, the applicant was in a better state of spirits and was in a position to commence her studies again.

28.    On 20 November 2018, the applicant had another check up with a general practitioner.  Dr Neil McNab at the Toorak Clinic confirmed she was medically fit to go back to study. This was confirmed in a medical certificate issued by Dr McNab.

29.    On 26 November 2018, the applicant also had another check up with Dr Schmidt. Dr Schmidt confirmed to the applicant that she was medically fit to return to the Masters of Business Administration course in 2018.  Dr Schmidt further confirmed that the applicant’s history was advisable for her to have deferred the second trimester of the course in 2018, as well as the first trimester as per her medical certificate issued on 6 December 2017.

30.    The applicant told the Tribunal that on 28 November 2018 she enrolled at the Queens College to complete a Diploma of Leadership and Management. She claimed this course will complement her Bachelor of Applied Science (Built Environment) together with her interest in construction and property management.

31.   

The applicant has almost completed her Diploma of Leadership and Management course.  She told the Tribunal that she has three units left of the course and expects to finish it in November 2019.

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

32.    The applicant confirmed to the Tribunal that her objective in coming to Australia was to study.

33.    The applicant told the Tribunal that she still has a passion to complete her Masters of Business Administration.  However, she told the Tribunal in late 2018 she was concerned she was still susceptible to a relapse with her depression.  She claimed that in late 2018, Dr Schmidt had advised her that she was at risk of having a relapse with her depression. On that basis, she decided that it was prudent to not return to studying the Masters of Business Administration course because she felt the stress from this course could cause her to relapse. She claimed she did not want to jeopardise her chance of obtaining such a qualification. Furthermore, the applicant stated that she does not want to return to Vietnam without a Masters of Business Administration qualification. 

34.    She then told the Tribunal that to ensure she is able to complete a Masters of Business Administration in the long term successfully; it was her opinion that she should complete a transition course that would complement her Bachelor of Science Degree.  On that basis, the applicant elected to complete a Diploma of Leadership and Management Course at the Queens College. 

35.    The applicant expressed a need to remain in Australia to complete her Diploma of Leadership and Management course and thereafter her Masters of Business Administration course. The applicant claimed she had three units left and will finish her Diploma of Leadership and Management in November 2019. She further claimed that in order to complete her Masters of Business Administration, it would take her two years.  She hoped to then be able to gain some work experience work in the construction management industry in Australia.

36.    The applicant’s husband, Mr The Hung Do, told the Tribunal that he had been married to his wife for six years. He was 32 years of age.  He indicated to the Tribunal that he had always been by his wife’s side and supported her whilst they have been married.  He confirmed that he agreed with everything his wife had stated to the Tribunal.  He also told the Tribunal that the wife’s mental health issues took over her life for a long time.

37.    Mr Do stated to the Tribunal that if the applicant’s visa was cancelled, he believed such circumstance would affect her spirit and mental state.

38.    The Tribunal accepts that the applicant wishes to finish the Diploma of Leadership and Management and the Masters of Business Administration courses that she has commenced in Australia.

39.    The Tribunal also gives weight to the fact that the Applicant has attempted to further enhance her educational qualifications whilst her visa has been cancelled, especially in circumstances where she has experienced a significant period of depression and was unable to study during that period. The Tribunal places weight on the fact that the applicant’s husband, Mr Nguyen and Ms Ta corroborate the applicant’s assertions that she suffered a period of depression and was not able to study during this period.

40.    The Tribunal acknowledges the applicant would have been stressed at the time of returning to her studies. Given she has sustained being able to study and has nearly finished her Diploma of Leadership and Management, the Tribunal is of the view that applicant has demonstrated a strong commitment to studying.  The Tribunal is also of the view that given that the applicant was at a possible risk relapse of returning to a depressive state and has not done whilst studying her Diploma of Leadership and Management demonstrated that her depression has abated.

41.   

Furthermore, the Tribunal gives weight to the fact that the applicant made a genuine attempt to defer her Masters of Business Administration. Whilst her deferment attempt was not successful, the Tribunal is of the view that such attempt demonstrated the applicant’s desire to respect and value the visa conditions and her studies.

The extent of compliance with visa conditions

42.    The applicant has stated that she has complied with all other conditions on her visa. There is nothing before the Tribunal to indicate that this is not the case. The Tribunal gives this some weight in favour of the applicant and not cancelling the visa, however remains mindful that it is expected that all visa holders adhere to the conditions on their visa.

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

43.    The applicant explained that if her visa is cancelled then it will have a massive impact on her life.  She claimed that it would cause great disappointment to both her extended family and her husband’s family in Vietnam.

44.    She claimed that having the visa cancelled would also cause her to suffer a loss of confidence because she would not be able to face her husband and their respective families because she values education and has high expectations of herself to achieve a good qualification and do well at her studies.

45.    She told the Tribunal that she wants to make her husband and their respective families proud. It is for this reason that she does not want to be penalized for not being able to pursue her studies because of her depression. A condition that she claims she had no control over.

46.    The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

47.    The Tribunal also accepts that the hardship is felt by family members who may also feel let down and disappointed.

48.    The Tribunal accepts that a cancellation may contribute to the emotional pressure and stress that the applicant may already be facing.  The Tribunal gives weight to the fact that it appears the applicant’s depression was circumstantial in that it was triggered by an unfortunate circumstance; that being that both her husband and she lost their deposit monies (AUS E$150,000) at the hands of a bankrupt builder. The applicant has provided evidence that she made attempts to overcome her depression, defer her Masters of Business Administration and remain focused to pursuing her studies.

49.    Individually and cumulatively the issues put forward by the applicant pertaining to the circumstances in which the breach occurred are given sufficient weight to outweigh the reasons for the period in time where the applicant was not studying and not enrolled.  

Circumstances in which ground of cancellation arose

50.    The applicant told the Tribunal that in 2017 she lost AUS E$150,000 when she transferred deposit monies to a bankrupt builder as part of a contract to buy a home off the plan. She told the Tribunal that this unfortunate circumstance led to her suffering quite deliberating depression. 

51.    She told the Tribunal that she consulted a general practitioner for initial advice and treatment for her mental health issues. She has relied on medical certificates to substantiate her claims.

52.    The applicant also told the Tribunal that she did not consult a psychologist about her depression despite it being recommended to her from her general practitioner.  She claimed at the time of such recommendation she was in denial about her condition and could not afford such treatment.

53.    The applicant claimed she attempted to defer her Masters of Business Administration by  posting the medical certificate issued by Dr Schmidt on 6 December 2017 to the Kaplan Business School head office.  However, she further claims she was never provided a response from the Kaplan Business School and never followed them up because she her depressive state prevented her from doing so.

54.    The applicant further claimed she consulted a Buddhist monk, Mr Thich Minh Niem, at Quang Minh Monastery in Sunshine Victoria for advice and treatment about her mental health.  He recommended meditation and commenced such treatment on or around June 2018. She claimed she was not longer suffering depression and this was because meditation successfully treated her condition.

55.    The applicant enrolled in Diploma of Leadership and Management at Queens College and almost finished this course.  She claims she enrolled in this course because she wanted to pursue a transition course that would complement her previous studies to ensure she would relapse back into a depressive state. She claims she took a cautious approach to her studies because her medical practitioner had advised her she was at a risk of a relapse into a depressive state.

56.   

The Tribunal acknowledges that the applicant wishes to continue to study in Australia.  The Tribunal has given weight to her claim that she suffered “circumstantial” depression and she made attempts to defer her studies because of such depression.  The applicant took her initiative to overcome her mental health issues through meditation which appears on the evidence before the Tribunal to have been successful as the applicant has almost completed a Diploma of Leadership and Management course immediately after suffering depression.  It appears on the evidence that despite being advised she was at risk of falling into a relapse with depression the applicant has not done so. Individually and cumulatively the issues put forward by the applicant pertaining to the circumstances in which the breach occurred are given sufficient weight to outweigh the reasons for cancelling the visa.

Past and present behaviour of the visa holder towards the department

1. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

Whether there would be consequential cancellations under s.140

1. This is not relevant to the applicant.

   
    

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

1. If the visa is cancelled, the applicant would need to obtain migration advice pertaining to her status.

Australia’s international obligations

1. There is nothing before the Tribunal to suggest that the cancellation of the visa holder’s visa would breach any international obligations.

   
    

Any other relevant matters

1. This is not relevant to the applicant.

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

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa. The Tribunal has no jurisdiction with respect to the other applicant.

Amanda Pearson
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.