Pham (Migration)

[2018] AATA 5473

Pham (Migration) [2018] AATA 5473 (22 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Huyen Trang Pham

CASE NUMBER:  1620815

HOME AFFAIRS REFERENCE(S):           BCC2016/3116889

MEMBER:Brendan Darcy

DATE:22 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 November 2018 at 2:37pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – enrolled in a principal course with an eligible education provider – consideration of discretion – not a genuine student – career goals – period of non-compliance – family issues – financial difficulties in family business – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 December 2016 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(b) on the basis that the applicant was not compliant with condition 8516 imposed on the applicant’s student visa at the time of its grant and that the grounds for cancelling the visa outweighed the grounds for not cancelling the 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 17 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was also provided with an opportunity to provide a post hearing submission by 7 September 2018.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

7. On 4 September 2013, the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8516 attached.

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8516 was attached to the applicant’s visa.

9. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of a criterion requiring the applicant to be enrolled, it has been held that this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

10. In the present case the applicant was required to meet, among other criteria, subclause 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994.

11. Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI14/015.

12. The courses specified by the Minister in instrument IMMI12/037 for a subclass 573 visa (granted prior to IMMI12/037) are:

    ·Higher Education Diploma

    ·Higher Education Advanced Diploma

    ·Bachelor Degree

    ·Graduate Certificate

    ·Graduate Diploma

    ·Associate Degree

    ·Masters by Coursework.

13. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor degree, Master’s degree by coursework or, for visa applications made on or after 12 November 2012, an advanced diploma in the higher education sector: cl.573.111.

14. According to the decision record submitted by the applicant when her review application had been lodged, the applicant was granted a class TU subclass 573 on 4 September 2013; that her visa stay period extended to 30 September 2017; and that she has since only completed two registered courses. It also mentions that the applicant did not study or hold any relevant Confirmation of Enrolment (CoE) between 29 July 2015 and 21 November 2016.

15. As discussed during the scheduled hearing, Provider Registration and International Students Management System (PRISMS) records indicate the applicant had been initially enrolled at Federation University in a package of courses that included a General English (Beginner to Advanced) course and Certificate IV in Business Administration both of which she completed and a Bachelor of Management which the applicant ceased on 4 August 2014.  

16. The applicant then enrolled on 12 February 2015 in a Bachelor of Business with a different education provider but would later cease this degree on 29 July 2015.   

17. The Department sent by email a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s student visa on 16 November 2016.

18. On 1 December 2016, the applicant emailed its response to the NOICC which included a written statement dated 30 November 2018 from the applicant. With regards to the grounds for cancellation, the applicant argued that the NOICC was incorrect in stating that she was not enrolled in a Bachelor’s degree at the time of the NOICC as she had been enrolled since 6 October 2016. The applicant provided CoEs to support this claim which indicated the applicant was enrolled in Certificates III and IV in Commercial Cookery, a Diploma of Hospitality and a Bachelor of Business at Stott’s College. The applicant provided reasons for the gap between her enrolment in a Bachelor’s degree in middle of 2015 and her new enrolment in October 2016.

19. A delegate on behalf of the Minister proceeded to cancel the applicant’s visa on 6 December 2016. On 7 December 2016, the applicant validly applied to have that cancellation decision reviewed by the Tribunal with the decision record attached.  

20. As outlined above, the applicant did not provide any further evidence or arguments as to the reasons the visa should not be cancelled.

21. Based on the information before it, the Tribunal finds that the delegate’s finding that the applicant had not been enrolled in an eligible higher degree between 29 July 2015 and 21 November 2016, to be incorrect. Instead the Tribunal finds that the applicant had been not been enrolled between 29 July 2015 and 6 October 2016 – a period of about fifteen months, based on the submitted CoEs.

22. As discussed in the hearing, the Tribunal further finds that the applicant was also not earlier enrolled in a Bachelor’s degree for an earlier period of about seven months between 4 August 2014 and 12 February 2015.

23. When considering this non-compliance, the Tribunal finds that the applicant had not been continually compliant with condition 8516 for almost 22 months, when cumulatively considered, while holding a class TU subclass 573 visa.

24. Based on the information above, the Tribunal finds that while the applicant while holding a subclass 573 student visa did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that she breached condition 8516 of her student visa.

25. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

26. 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.

27. 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).

28. According to the delegate’s decision record, the applicant was granted a Class TU Subclass 573 visa in a package course to complete English language course, a Certificate IV in Business Administration and a Bachelor of Management on 4 September 2013. The visa was set to expire on 30 September 2017.

29. The decision record also states that the applicant provided a written response to the Department as to the circumstances she was not enrolled. The applicant had claimed that she had not been enrolled after July 2015 due to a financial crisis in her mother’s family business whereby her parents and other relatives often quarrelled and the applicant did not have the mood to study. She claimed her parents did not say anything but she was aware of the burden on them if the applicant continued to pay tuition fees. The applicant claimed that she told her parents that she would obtain a loan for tuition fees, instead of money forwarded by her parents. However the applicant dropped out of her enrolled studies.

30. The applicant further claimed she was upset and could not sleep during nights and that she had difficulties in smiling. She claimed to worry about her student visa if she did not continue to study and she could not return to Vietnam as they assumed she was studying. The applicant stated the situation improved in second half of 2016 and she was able to re-enrol.

31. Other matters raised are discussed below.

32. The applicant provided a copy of the delegate’s decision to the Tribunal at the time of application.

33. On the day of the scheduled hearing, the applicant forwarded an email with a number of attached documents. The attachments included:

    ·An academic certificate, an academic record and a letter of completion indicating the applicant had completed a Certificate IV in Business Administration at Della International College in 2014;

    ·A Confirmation of Enrolment (CoE) indication the applicant was enrolee at Stott’s College for Certificates II and IV in Commercial Cookery, a Diploma of Hospitality and a Bachelor of Business on 6 October 2016; 

    ·A copy of her parents’ savings book;

    ·An academic certificate indicating the applicant completed English language course work;  and

    ·A personal statement dated 16 August 2018.

34. The personal statement outlined to the Tribunal that the applicant had been enrolled into a package of courses with Bachelor of English as the principal course. The applicant wrote that she did not understand the decision record’s statement that if she was unable to study at the visa subclass for which they approved the visa then visa holders are required to change subclasses to reflect the level of study they are completing, as she was enrolled in a Bachelor’s degree. She also admitted it was her fault for not studying between July 2015 and September 2016, but it was due to family issues. She also mentioned that not cancelling her visa was important to her career plan which involved returning to her home country and establishing western style restaurant in Vietnam.

35. On 6 September 2018, the applicant submitted a copy of the applicant’s ‘GTE Statement’ that was attached to her student visa application.

36. On 7 September 2018, the applicant submitted a number of documents as a post hearing submission. These included an emailed statement by the applicant, pictures of dishes from the applicant’s Instagram account; documents about her brother’s studies; a letter of invitation to work at a hotel in Vietnam; copies of her CoEs; media article about environmental damage to fisheries caused by a Taiwanese-owned smelter in 2016; and a notarised statement from the applicant’s parents about being impacted by the 2016 environmental damage.

37. No further evidence or submissions have been provided to the Tribunal regarding the cancellation of the applicant’s student visa.  

    The purpose of the visa holder’s travel to and stay in Australia

38. The applicant provided vaguely written sentiments about the purpose of her studies in her NOICC response. She claimed that she changed course work to hospitality as it was too theoretical and did nothing to help her parents’ business financial crisis and that she wanted to gain practical skills and business knowledge suitable to capitalise on the growing tourism industries in Vietnam and to open a western style restaurant in Ho Chi Minh City.  She also wrote:

    “Dear officer, as described above, I came to Australia for study purpose only. The reasons why I stay here is to complete the study program which benefits my future career. I study not only for myself, but for my parents and they have very high expectations on me. My goal is to successfully complete the relevant qualifications.” 

39. The delegate applied no weight for this consideration in favour of the applicant.

40. During the scheduled hearing, the applicant elaborated that she came to Australia to follow her ambition to take over her family business and to learn to manage it and to learn more about Western style cookery and cuisine. She described cooking as her hobby and wanted to use her learning and skills to develop her family’s seafood and petrol station business which was part of the explanation the applicant changed coursework. When the Tribunal stated that she did not require a Diploma of Hospitality and Bachelor of Business to operate a family business in Vietnam, she claimed her parents would benefit from her skills. The Tribunal enquired into the reason the applicant did not apply for a package of coursework that included hospitality and cuisine; to which the applicant responded that her agent at the time of applicant said the courses were recommended as the best for her.  The Tribunal also enquired whether a Bachelor of Business was required at all as at best the applicant need only book keeping skills to assist with the family business. The applicant insisted such qualifications were required as well as skills. In the post hearing submission, the applicant provided pictures of food she claimed to be Western-style dishes prepared by her and a letter of offer to work in a hotel. With regards to the letter from the hotel, the Tribunal notes that the applicant did not claim during the hearing she wanted to work for a hotel, although her NOICC response mentions her studies will assist in her finding work and that GTE Statement mentions business studies would pave the way in her securing a well-paid job in Vietnam, especially in logistics industries.

41. The Tribunal acknowledges the applicant completed some course work and that she did re-enrol in a set of coursework pertaining to hospitality and cooking prior to the NOICC being issued. Nevertheless the fact remains she was not enrolled for a considerable amount of time. Furthermore the Tribunal finds the applicant’s documentary written and oral evidence not to be mutually supportive that she wished to genuinely complete a coursework in cookery and hospitality. Below the Tribunal makes a number of adverse credibility findings, and in this context, the Tribunal finds that the applicant has been proffered different career goals to different decision makers solely for the purposes of remaining in Australia and not because she is a genuine student who will study full time. The Tribunal acknowledges she has provided some evidence that she is interested in cooking as a hobby but there is insufficient evidence that she is determined to return to Vietnam to use her skills for the claimed reasons and that her stated reasons were advanced in a platitudinous to augment her otherwise weak reasons to have this visa reinstated. Accordingly the Tribunal finds the applicant is not a genuine student and finds these factors give notable weight in favour of the visa not remaining cancelled.

    The extent of compliance with visa conditions

42. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions. The delegate decision does not record any information about further non-compliance. The Tribunal finds there were no other breaches of conditions imposed on her other than the applicant was not meeting condition 8516 attached to her student visa.  In particular the applicant had not been enrolled continuously in a packaged course as she had experienced two significant gaps in enrolment as the periods in which the applicant had been non-compliant, cumulatively considered, amounted to twenty two months out of the three years and two months in which she held this student visa currently under review.  The Tribunal gives this factor significant weight towards the visa being cancelled.

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

43. In the applicant’s NOICC response, she claimed it will be a disaster to her life and her family if the visa remains cancelled. She claimed the course work she has completed will not assist in finding any work and she will have to rely on her family and that she will look down on herself.  She also claimed emotional distress to her family and because she lied to her parents about gaining a loan. She also mentioned her parents’ heart disease and blood pressure will deteriorate if she shocked them with the news of her visa being cancelled. The delegate’s decision accepted that there may be some hardships as a result of the cancellation, including future visa applications not being approved within the next three years due to the Public Interest Criteria 4013.  While the Tribunal accepts the applicant will face some financial, emotional and psychological hardship, the applicant did not attend the scheduled hearing and she provides any medical evidence regarding her parent’s health due to pre-existing heart conditions. In such circumstances, it is not unusual for the applicant’s to significantly exaggerate the hardships she might face if the visa were cancelled.  In the context of other adverse credibility findings in this decision, the Tribunal finds that applicant will not face hardship arising from her parents’ pre-existing health further deteriorating of that the cancellation of the visa will amount to be disastrous for either herself or her family, either materially, emotionally or in relation to their health.

44. During the hearing the applicant also claimed that people will look down on her for not completing her studies and because she is 26 year of age, she will be stigmatised in the labour market as a single woman. When the Tribunal stated that it was not unusual for single women to run businesses in Vietnam, the applicant disagreed. The Tribunal does not accept the levels of stigma towards single women in their late twenties without degrees in the Vietnamese labour market are significant. It places very little weight on this otherwise weak claim.

1. Taking all these aspects into account, whilst the Tribunal accept that the applicant may suffer some hardship if the visa remains cancelled, it finds on the evidence that she has not demonstrated any significant hardships. The Tribunal gives these factors little weight towards the visa not being cancelled.

   The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

2. In the applicant’s written statement as part of her response to the issued NOICC, the applicant claimed that in March 2015 her parents, who ran a seafood and petrol station business in Vietnam, encountered some problems which led to their financial difficulties and feared it would end in her parent’s marriage breaking down. The statement states she became aware of these problems through her sister who did not inform her of the challenges. As the applicant feared being a burden on her family if she continued paying tuition fees, the applicant claimed that she told her parents not to worry about the tuition fees as she would be borrowing money from the college and to send money later when the business resumes normally. She claimed she was very upset and stressed during this period of time.

3. During the hearing, she elaborated that her parents continued to find the tuition fees for her brother studying architecture in Russia but later said that her brother was in receipt of a scholarship. In a post hearing submission, the applicant provided a certified copy and translation of her brother’s scholarship agreement to study at the Plekhanov Russian University between 2016 and 2019. On balance, the Tribunal accepts this specific claim.

4. However, the Tribunal has particular difficulties in reconciling the applicant’s financial difficulties arising from a seafood business. The Tribunal notes that during the hearing the applicant was unable to elaborate on the specifics of these difficulties other than to state the problems lasted eighteen months. To support the applicant’s claimed family circumstances; she submitted a statement from her parents. The statement indicated that her parents reside in Dong Hoi city in Qang Binh province and that they have owned a commercial shrimp business since 2007 which has been adversely affected by storms damage in 2013; ‘white spot’ disease in 2015; and in 2016, environmental damage from the Formosa smelter in Ha Tinh province. The applicant also submitted some country information to support the claim. However these claims appeared to be undermined by the copy of her submitted ‘General Temporary Entrant’ statement that was also part of post hearing submission. This statement was submitted as part of the applicant’s student visa application prior to her arrival in Australia. Of particular concern was the applicant stating that she was from Hai Chau district near Da Nang. Publicly available information indicates Da Nang is more than 250 kilometres south of Dong Hoi. Further the applicant described her father’s employment as a driver for a tourism company and her mother as a market trader.  The Tribunals finds that these statements are not only inconsistent but mutually unsupportive. For this reasons, the Tribunal finds that the Tribunal places no weight on the parents’ statement about their seafood business as being credible and no weight on the applicant’s written and oral claims about financial hardship leading to the grounds for cancellation. The Tribunal further finds does not accept the applicant’s parents ever owned a seafood business and that the applicant advanced this contrived claim solely to gain a favourable decision in this matter.

5. The Tribunal also notes there are no medical certificates or psychological reports or any other documentary evidence to support her claims about mental distress. The Tribunal accordingly does not have any reliable or credible submissions to support the applicant’s otherwise vaguely argued claim that her parents suffered financially so as to explain her non-compliance with 8516.

6. Based on the Tribunal’s adverse credibility findings in this regard, the Tribunal does not accept that the circumstances that led to the consideration of the grounds for cancellation were either extenuating or beyond the applicant’s control. Accordingly, it places no weight in this consideration in favour of the student visa under review being reinstated.

   Past and present conduct of the visa holder towards the Department

7. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal has no evidence of any further non-compliance or questionable conduct towards the Department, either in the past or presently. Accordingly, the Tribunal places a little weight on this factor in favour of the visa being not cancelled.

   If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

8. Not relevant.

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

9. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. She has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

10. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

11. During the scheduled hearing the applicant said she did not think she has any fear of being harmed if she returned to Vietnam. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Other relevant matters

12. The Tribunal notes that the applicant first arrived in Australia as a 16 year old, that has made many friends during her late adolescence and early childhood, and that she had relatives in Australia.  Ordinarily the Tribunal would place some or even a significant amount of weight in favour of an applicant based on a lack of maturity. However, given the Tribunal’s adverse credibility finding about her claims leading to the grounds for cancellation are so deep and so contemptuous of the Tribunal, it places only a little weight in her favour arising from her immaturity.

    Consideration of the discretion to cancel the visa

13. 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.

14. The applicant had been substantially been non-compliant with condition 8516. The applicant provided explanations for this non-compliance that were fundamentally undermined by the applicant providing fabricated oral, written and documentary evidence. She also failed to provide convincing or credible reasons as to the reasons she wanted to continue with her studies on a full time basis.

15. With particular emphasis on the applicant’s significant lack of credibility the Tribunal does not accept that the applicant is not a genuine student who will uphold conditions imposed on her if this visa is in reinstated. These factors significantly outweigh any other factors in her favour.

16. Considering the evidence provided and on weighing the above factors and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Brendan Darcy

    
    

    Member