Pham (Migration)

[2018] AATA 5176

Pham (Migration) [2018] AATA 5176 (19 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Trang Pham

CASE NUMBER:  1619462

HOME AFFAIRS REFERENCE(S):           BCC2016/3053922

MEMBER:Justin Owen

DATE:19 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 October 2018 at 10:20am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 573 Higher Education Sector visa  – breached condition 8101 – not enrolled in a course at the Higher Education Sector level – failed to attend tribunal hearing – failed to maintain study plan – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198, 362B, 379A,
Migration Regulations 1994, r 1.40A, Schedule 8, cls 573.111, 573.112, 573.231, 573.223

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 9 November 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 applicant is a national of Vietnam born 11 January 1992.  Her Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 2 October 2013 and was subject to condition 8516.  On 28 October 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8516 of her visa, as she was no longer enrolled in a Bachelor or Master degree course and she was not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A.  As she had not continued to be a person that would satisfy either subclauses 573.231 or 573.223(1A), the delegate considered that the applicant had not complied with condition 8516 of her visa.    The applicant responded to the NOICC on 3 November 2016 as did a friend of the applicant Mrs Thuy Dang.  On 9 November 2016 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8516 of his visa.      

3. The delegate cancelled the visa on the basis that the applicant had not complied with the requirements of condition 8516 of 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.

4. The applicant was represented in relation to the review by her registered migration agent.

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 8516 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.

7. On 21 November 2016 the Tribunal wrote to the applicant and advised it had received an application for a review of the delegate’s decision to cancel his Subclass 573 Higher Education Sector visa.

8. On 28 September 2018 the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues in his case on 16 October 2018. The invitation stated that if the applicant did not attend the scheduled hearing then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 

9. On 11 October 2018 the Tribunal received a completed response to hearing invitation.  The response indicated that both the applicant and her representative would be attending and take part in the hearing scheduled for 16 October 2018. 

10. The applicant did not appear before the Tribunal on the day at the scheduled time and place. The applicant did not provide any reason for their failure to appear at the hearing. The applicant did not request an adjournment. The applicant has not provided any further evidence, submissions or information to the Tribunal between the hearing and decision. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5) and the invitation has not been returned to sender.

11. In these circumstances, and pursuant to s.362B of the Migration Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    Does the ground for cancellation exist?

12. 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(1). 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.

13. 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 is attached to the applicant’s visa. This condition 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 the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

14. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is an eligible higher degree student who satisfies cl.573.223(1A), or, if not, is enrolled in, 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 IMMI 12/037.

15. 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’s degree, Master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying eligible education providers for this visa was IMMI 14/007.

16. In the present case, the applicant’s visa was cancelled on the basis the applicant did not continue to be a person who would satisfy either subclauses 573.231 or 573.223(1A).  As such it appeared that the applicant no longer satisfied the primary criteria for the grant of the visa and did not comply with condition 8516. 

17. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 9 November 2016. The decision record states that information before the Department indicated that the applicant had not been enrolled in a course at the Higher Education Sector level since her Bachelor of Business was cancelled on 7 September 2015.     The delegate’s decision provided by the applicant furthermore stated that the Provider Registration and International Student Management System (PRISMS) records, whilst currently showing that the visa holder commenced studying general English from 24 October 2016, did not show any future enrolments. 

18. The delegate’s decision record states that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 28 October 2016 and invited the applicant to respond in writing.  The applicant responded to the delegate on 3 November 2016.   In the applicant’s response of 5 November 2016 to the NOICC (D1, Folio.19) the applicant writes ‘I know that I was very wrong while coming here for study purpose but I did not study properly.’

19. The applicant has not made any written submissions to the Tribunal.  The applicant failed to appear before the scheduled Tribunal hearing to provide oral evidence.

20. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study between 7 September 2015 and the time of the delegate’s decision on 9 November 2016. Accordingly, the applicant has not complied with condition 8516.

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

    Consideration of discretion

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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

23. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia.  The primary decision record indicates that PRISMS evidence available to the Department indicated the applicant ceased to be enrolled between 7 September 2015 and the time of decision on 9 November 2016.  The Tribunal considers the breach of condition 8516 to be significant and that the applicant had not been fulfilling the purpose of her travel to and stay in Australia as a holder of a student visa. 

24. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia.  The Tribunal notes from the decision record that the applicant was granted a 573 Higher Education Sector visa on the basis that her intention was to study the Higher education level principal course of study a Bachelor of Business at James Cook University.  As the decision record states, the PRISMS records indicate that she failed to maintain the study plan she outlined when she applied for the visa.  The decision record indicates that her Bachelor of Business studies were cancelled on 7 September 2015 and, whilst she commenced studying general English after receiving the NOICC, her PRISMS records did not show any future enrolments.    Based upon the evidence of her failure to remain enrolled at a Higher Education Sector level for a period of at least thirteen months, the Tribunal is of the view that the applicant was not in Australia for a significant period of time in accordance with the original purpose of her visa. The Tribunal furthermore notes her statement in her response to the NOICC where she states ‘I know that I was very wrong while coming here for study purpose but I did not study properly.’  The Tribunal finds that between September 2015 and the delegate’s decision in November 2016 the applicant was not fulfilling the purpose of her travel to and stay in Australia as the holder of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.  This factor weighs in favour of cancelling the visa.  Given the applicant’s actions in failing to fulfil the purpose of her visa for a significant period of time, the Tribunal weighs this factor in favour of cancelling the visa.  On the evidence before concerning the purpose of the applicant’s travel to and stay in Australia, it the Tribunal weighs this factor in favour of cancelling the visa.

25. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.  The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of her visa by not being enrolled at a Higher Education Sector level course for a period of at least a year and a month to be substantial.  The Tribunal considers the applicant’s non-compliance with her visa conditions to be considerable.  The Tribunal notes from the decision record of the delegate that the applicant had failed to complete any courses prior to the NOICC being issued.  The Tribunal is of the firm view that visa holders are expected to study at the visa subclass level for which they were approved at the time of application. This has not been the case with the applicant.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.

26. The Tribunal has considered the degree of hardship that may be caused to the applicant and her family should her student visa be cancelled.

27. The Tribunal notes that the applicant failed to maintain the study plan she outlined when she applied for her Student visa.  The decision record indicates that her Bachelor of Business studies were cancelled on 7 September 2015 and she failed to enrol in another higher education course between that date and the delegate’s decision over a year later.  The Tribunal notes from the decision record that she had failed to complete any courses in Australia at the time of decision, over three years since she was initially granted the visa.  The Tribunal notes that the applicant commenced studying general English but given this was commenced after receiving her NOICC gives this little weight.  The Tribunal furthermore noted that her PRISMS records according to the decision record did not show any future enrolments in higher education courses.

28. The purpose of the applicant’s Student visa was to undertake study and achieve educational qualifications in Australia.  Given her failure to do so over a considerable period of time, the Tribunal considers there is little hardship to the applicant should her Student visa be cancelled.  The Tribunal weighs this factor in favour of cancelling the visa. 

29. The Tribunal has considered the hardship to the applicant’s family.  There is no evidence before the Tribunal of any family members of the applicant who reside in Australia.  The applicant in her response to the NOICC from the Department in 2016 wrote that when her parents’ hometown in Vietnam flooded and their business suffered that she did not wish to return to Vietnam ‘to make my parents even more suffer.’   She writes however that as time passed ‘my family’s business was running better.’  The applicant wrote that her parents advised her that she should return to study and finish her course.  On the evidence before it the Tribunal is of the opinion that her parents’ business is successfully operating and her return to Vietnam would not put them under any additional burden.  The Tribunal notes from the applicant’s NOICC response that her parents appear to be aware that she was no longer studying.  Given she entered Australia for the express purpose of study, the Tribunal does not consider her return to Vietnam on the basis of failing to meet the requirements of her visa will be surprising to her parents.  The Tribunal accepts that the cancellation of her visa will nevertheless cause some distress to her family given the investment they have made in her education.  Nevertheless the Tribunal considers the hardship to the applicant’s family should her Student visa be cancelled is minimal.  The Tribunal weights this factor in favour of cancelling the visa.        

30. The Tribunal notes that the applicant will become an unlawful non-citizen if her visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if she does not voluntarily depart Australia. She will also be subject to an s48 bar which will limit her options in applying for further visas in Australia. The Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date. The Tribunal however also notes that if her visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow her to remain in Australia to finalise any outstanding matters and visa applications that have been lodged. On the evidence before it concerning the degree of hardship, the Tribunal weighs this factor in favour of cancelling the visa.

31. The Tribunal has considered the circumstances in which the ground for cancellation arose.  At the time of decision the applicant has not provided the Tribunal with any submissions concerning the circumstances in which the ground for cancellation arose.  The Tribunal has noted the reasons provided by the applicant to the delegate in response to the Notice of Intention to Consider Cancellation (NOICC) issued by the Department as outlined in the decision record the applicant provided the Tribunal. 

32. The applicant in her response to the NOICC (D1, Folio.19) stated that after arriving in Australia to study she had no friends and a very limited English ability, making her stressed, homesick and consequently difficult to study despite her parents’ best efforts and support.  The applicant wrote that her hometown and her parents’ family business was severely affected by a flood.  She claimed that this situation upset her as she did not know how to help her parents and she didn’t wish to return to Vietnam to make her parents suffer more.  The applicant wrote that she didn’t have the finances to pay for her education and was subsequently not allowed to study.  The applicant wrote that the mother of a friend, Mrs Thuy Dang, realised her predicament and kindly permitted her to stay at her residence.  The applicant wrote that as ‘time passed by’, her family’s business was running smoother and her parents advised that she should return and complete her education.  The applicant wrote that her re-enrolment was rejected due to the fact her certificate of enrolment (CoE) was cancelled a ‘long time ago.’  The applicant’s NOICC response and her explanation as to the circumstances in which the grounds for cancellation arose was reflected in a submission by Mrs Thuy Dang (D1, Folio.21)

33. The applicant acknowledges that she was ‘very wrong’ coming to Australia for study purposes but ‘I did not study properly.’  She states that ‘coming to Australia to study is my dream’ whilst Mrs Dang wrote that the applicant is ‘excited that she could have an opportunity to return to school and fulfil her dream of completing her studying in Australia to go back to Vietnam and help her parents’ business.’  The Tribunal accepts that moving to Australia to study can involve a certain degree of stress and dislocation.  This however is not unusual for many thousands of Student visa holders that come to Australia and successfully remain enrolled and ultimately complete their studies.  The Tribunal notes the applicant’s claims concerning her finances and the challenges she faced in paying her fees.  There is no evidence before the Tribunal to support this assertion beyond the applicant’s NOICC response and the letter from Mrs Dang.  The Tribunal furthermore notes that it is a requirement of a Student visa holder that they will have sufficient funds to meet their costs and expenses required to support themselves as well as cover their tuition fees.  The Tribunal also notes that the applicant in her NOICC claimed that when her family’s business ‘was running better’ they advised her to re-enrol and complete her course. The applicant claims she contacted migration agents and tried to do so but was told they could not help her as her enrolment was cancelled a ‘long time ago’.  There is no evidence before the Tribunal to support this claim beyond the applicant’s NOICC response and the letter from Mrs Dang. 

34. The Tribunal notes that the ground for cancellation arose due to the fact the applicant ceased enrolment with a registered education provider at the Higher Education Sector level and subsequently failed to rectify her enrolment status in an adequate time.  The applicant on the evidence in the decision record had failed to adequately rectify his enrolment situation for at least thirteen months.  Given the applicant was a direct party to her enrolment; the Tribunal is of the opinion that on the evidence she would have been aware that she had ceased enrolment with a registered education provider.  The Tribunal furthermore notes that visa holders are expected to be mindful of the requirements of their visa and to inform the Department of any changes to their status.  This includes being aware of any conditions such as condition 8516 which required that the applicant continue to maintain enrolment in a Higher Education Sector level course whilst they hold the visa.  The Tribunal is of the opinion that the applicant would have been well aware that her student visa contained condition 8516 which required her to remain enrolled at a Higher Education Sector level.  The Tribunal is of the firm view that the applicant would reasonably have been aware that her failure to remain enrolled with a eligible higher education provider for over a year would have an impact upon her eligibility to continue to hold his student visa.  On the evidence before it concerning the ground for which the cancellation arose, the Tribunal weighs this factor in favour of cancelling the visa. 

1. The Tribunal has considered the past and present behaviour of the applicant towards the Department.    There is no evidence before the Tribunal concerning the applicant’s previous and present behaviour towards the Department in favour or against cancelling the visa. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

2. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. The Tribunal notes from the decision record that the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. There is no claim made or evidence before the Tribunal that this is not the case. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

3. The Tribunal has considered whether there are 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 of the applicant’s visa.  There is no information before the Tribunal which indicates that ant cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

4. On the evidence before it the Tribunal considers the applicant’s breach of condition 8516 of their Student visa to be substantial.  The Tribunal considers the minimum 13-month period that the applicant failed to remain enrolled in a Higher Education Sector level course to be significant.  The grounds for cancellation have been made.  The applicant did not make any submissions as to the use of its discretion whether to cancel the visa.  The Tribunal has considered the applicant’s response to the NOICC as outlined in the delegate’s decision record and her reasons as to why her visa should not be cancelled.  The Tribunal has determined on the basis of the information before it that the visa should be cancelled.  

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

   DECISION

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

   Justin Owen
   Senior Member