Pham (Migration)

[2019] AATA 1710

Pham (Migration) [2019] AATA 1710 (28 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xuan Phu Pham

CASE NUMBER:  1725506

HOME AFFAIRS REFERENCE(S):           BCC2017/2907341

MEMBER:Joseph Lindsay

DATE:28 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 28 May 2019 at 9:18am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – difficult personal circumstances – not exceptional – not taken reasonable steps to manage situation – decision under review affirmed

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 16 October 2017 made by a delegate of the Minister for Immigration and Border Protection 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 failed to remain in a registered course of study and breached condition 8202(2)(a) of his student 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. On 1 April 2019 the applicant's representative wrote to the Tribunal requesting that the Tribunal make the decision on the papers, and that the applicant was not going to attend the hearing.

4. Accordingly, the Tribunal has decided to make a decision on the available information.

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 Tribunal has considered the decision record provided by the Department. The decision record indicates that the applicant has not been enrolled in a registered course of study since 7 March 2017.

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)(a) of the Act. The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

11. Having found that the applicant has not complied with conditions 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’.

12. The Tribunal notes that the applicant responded to the Notice of Intention to Consider Cancellation (NOICC) from the Department on 10 October 2017. The Tribunal has considered this information in this decision.

    The circumstances in which the ground for cancellation arose

13. In his response to the NOICC, the applicant indicated that his family suffered from a serious issue in relation to his parents’ marriage. He indicated that his father had an affair with another woman and that this situation caused a significant amount of emotional distress to himself. He indicated that he was worried about his younger sister back in Vietnam. He indicated he wanted to return to Vietnam to look after his sister but his father would not allow him to do that. He indicated his father wanted him to complete his current courses in Australia or otherwise he was not allowed to return to Vietnam.

14. The applicant indicated that this situation in regard to his parents had an adverse impact upon his ability to study. He indicated he skipped class because he could not focus on what his teacher had instructed him. He said he received lots of bad feedback which made him very nervous. He indicated he was unable to concentrate which negatively affected his studies. He then indicated that the problems with his parents’ marriage then resolved and his family relationship was back to normal. He then indicated he made a big mistake but that it was too late for him to re-enrol into his course. He indicated he then applied to enrol in another course of study but then received the NOICC from the Department. He indicated that even though he was struggling with his studies he still paid for his school fees with instalment payments. He indicated that he was under the impression he was still enrolled at his college. He indicated he was not aware that his enrolment was cancelled in March 2017.

15. In considering the above, the Tribunal accepts that the applicant faced difficult personal circumstances that adversely impacted his studies.

16. Had the applicant attended the hearing, the Tribunal would have had the opportunity to ask him why he did not approach is course provider and seek their assistance, and it would ask him why he did not approach the Department and seek their assistance also. However, because the applicant did not attend the hearing Tribunal was not able to put these questions to him. There is no indication that the applicant did in fact speak with his course provider or the Department in relation to his personal difficulties.

17. The Tribunal finds that the applicant’s claimed circumstances as to why he did not remain enrolled are not exceptional circumstances. The Tribunal finds that the applicant does not appear to have taken reasonable steps to manage his personal circumstances when he experienced personal issues, and he did not contact his course provider or the Department to notify them of his circumstances.

18. The Tribunal gives low weight to the applicant’s reasons as to why he did not maintain his course enrolment.

    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

19. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia appears to have been to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

20. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

21. In his response to the NOICC, the applicant did not make mention of the degree of hardship that may be caused to him should his student visa be cancelled. If the applicant had attended the hearing the Tribunal would have had the opportunity to ask him about the hardship that may be caused to him if his student visa was cancelled. However, because the applicant did not attend the hearing Tribunal was not able to put these questions to him.

22. The Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

23. There is no evidence that the applicant has been uncooperative with the Department in the past. Accordingly, the Tribunal gives this consideration low weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

24. There do not appear to be any dependants attached to the applicant’s student visa. The Tribunal places low weight on this information in the applicant’s favour.

    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

25. The decision record makes reference to the mandatory legal consequences that would occur in respect to the applicant should his student visa be cancelled. This decision record was provided to the Tribunal by the applicant. Accordingly, the Tribunal finds the applicant has reasonably been made aware of the mandatory legal consequences in respect of the situation that he would find himself in should his student visa be cancelled.

26. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

27. The Tribunal places low weight on this information in the applicant’s favour.

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

28. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled.

29. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

30. No other relevant matters were raised in the NOICC.

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

    Conclusion

32. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 7 March 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

33. The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

34. The Tribunal finds that the circumstances that led the applicant to not complete any higher education courses, as detailed above, are not exceptional circumstances. 

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

    DECISION

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

    Joseph Lindsay
    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.