Pham (Migration)

[2018] AATA 4687

Pham (Migration) [2018] AATA 4687 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duy Thanh Pham

CASE NUMBER:  1706376

HOME AFFAIRS REFERENCE(S):           BCC2017/114502

MEMBER:Brendan Darcy

DATE:8 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU student visa.

Statement made on 08 October 2018 at 10:25am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – father’s unemployment – financial capacity to pay fees – age of applicant – re-enrolled prior to NOICC – level of maturity – 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 20 March 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 had breached condition 8202 and the grounds for cancellation outweighed the factors in favour the visa not being cancelled. 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 5 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from 5 October 2018. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. 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).

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

8. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 22 January 2015 and the stay period of the visa was extended up to and including 20 March 2017. It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was enrolled in a registered course of study until 12 April 2016.

9. During the scheduled hearing, the applicant explained that he was enrolled in a package of coursework at La Trobe University in Melbourne: English for Further Studies; a Diploma of Business; and a Bachelor of Business. The applicant further explained that he had re-enrolled in the same courses with different commencement dates as he struggled with English language coursework.  As the PRISMS record and the applicant outlined in his oral testimony, the applicant finished only a General English program which was completed on 12 February 2016 and English for Academic Purposes (Immediate to Advance) completed on 6 February 2017.

10. Further evidence indicates that the applicant did not re-enrol into a Bachelor’s degree for Tourism and Hospitality Management until 6 February 2017.

11. As discussed in the hearing, the applicant arrived in Australia on 9 March 2015 for the first time and has never departed. 

12. The Department issued a Notice of Intention to Consider Cancellation (NOICC) letter on 24 Feb 2017, indicating the applicant he was no longer enrolled since 12 April 2016 through to 6 February 2017 and the grounds for cancellation existed. 

13. The applicant responded to the NOICC invitation to comment on 6 March and 15 March. The delegate noted in the decision record the applicant neither disagreed nor agreed there were grounds for cancellation in this instance. The Department proceeded to cancel the visa on 20 March 2017.

14. The applicant applied to have the delegate’s cancellation decision reviewed by the Tribunal on 28 March 2017. At the scheduled hearing held on 5 October 2018, the applicant did not dispute that the applicant had not been enrolled in a registered course for a Bachelor’s or Master’s degree between 12 April 2016 and 6 February 2017 – about ten months; and that the grounds for cancellation existed as he had breached condition 8202.

15. As the applicant has not failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) does not arise. It follows that the visa cannot be cancelled.

    Consideration of the discretion to cancel the visa

16. 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’

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

17. According to the decision record, the substantial period of non-compliance with condition 8202 it appeared that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study.

18. However, while he Tribunal notes the applicant’s lack of academic achievement since arriving in Australia has not been meagre and unsatisfactory, the Tribunal acknowledged the applicant re-enrolled in a Bachelor of Tourism and Hospitality Management prior to the issuing of the NOICC. This indicates to the Tribunal that the applicant did have some genuine drive to complete his studies without the imminent threat of his visa being cancelled.

19. During the hearing, the applicant articulated that he would wished to complete a bachelor degree in hospitality in Australia so as to obtain a qualification from Australia’s well-regarded education system; to learn about cultures by travelling; and to achieve a well-paying position in hotel back in Vietnam. He added that all this will eventually lead him to own and operate his own coffee and restaurant business.  He said that he enrolled in a general business degree as it had overlapping subjects but he had made some bad or poor decisions about his studies and that he was strongly motivated to complete his studies.

20. As discussed below, the Tribunal was able to identify somewhat extenuating circumstances for his lack of academic progress and that he arrived in Australia as an eighteen year old without adult supervision for the first time in his life. The applicant spoke credibility and consistently of his strong desire to complete his studies given the high degree his family valued academic achievement.

21. The Tribunal finds there is insufficient evidence to doubt the applicant’s intention or capacity to complete a Bachelor’s degree or that he will not be a genuine and conscientious student if this visa is reinstated. Based on the available information, cumulatively considered, the Tribunal is overall satisfied that the applicant’s purpose of travelling to Australia was to study and places substantial weight in this overall finding in favour of not cancelling the visa.

    The extent of compliance with visa conditions

22. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions. However his ten months of non-compliance with condition 8202 is considered to be significant by the Tribunal. Overall, the Tribunal gives these factors regarding non-compliance of visa conditions some weight towards the visa remaining cancelled.

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

23. During the scheduled hearing, the applicant struggled to articulate the degree of hardship that may be caused by the visa remaining cancelled. He claimed that that if had to return to Vietnam there would be deep disappointment felt by his parents, especially his father, in returning to Australia without a degree. He claimed that without a degree from Australia he would struggle to find suitable well-paying employment in the hospitality sector and that he would not be able to finish the equivalent degree in Vietnam for many years. 

24. While the applicant is likely to face some emotional or psychological hardship in returning to Vietnam and that he would face some material challenges in studying in Vietnam, the applicant failed to demonstrate he would be facing any considerable or significant hardship arising from the visa’s cancellation. Accordingly the Tribunal gives these factors only some 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.

25. According to the decision record, departmental records confirmed that the applicant was not meeting condition 8202 attached to his student visa as he was not enrolled in a registered course for a Bachelor’s degree for ten months, as required. 

26. The applicant provided a written statement to the Department as part of his response to the issued NOICC. The applicant stated that his father stopped working and his parents hid this so he could concentrate on studies and that the applicant accidently found out about it. He argued that in a panic, the applicant thought about quitting school because it was a heavy burden on his family and that he felt ashamed and blamed himself for spending his parents’ money. As his parents were busy finding work, they did not pay much attention to the applicant.  He claimed he did not know about supporting services for international students at the time and close friend supported him. He submitted evidence about his father being dismissed as a sales manager and that he found work in October 2017. During the hearing, the applicant reiterated these reasons orally and added that when he disclosed with his father that he had stopped studying, his father was very disappointed and insisted he return the applicant return enrolled as soon as possible.  When the Tribunal enquired as to why the applicant did not re-enrol until February 2016, the applicant claimed he did not about his father’s new employment until December 2017.

27. Overall, the Tribunal accepts these explanations for non-enrolment as plausible and consistent, although it does find it implausible the applicant was unaware of the support services offered to international students at La Trobe University.

28. However, while these reasons were credible and somewhat extenuating, they were not exceptional or considerably extenuating or even beyond the applicant’s control. Nor do they explain his poor academic performance prior to April 2016 or his lack of access of student services.  Given he provided evidence that his mother continued to work as a restaurant owner, the applicant has exaggerated the impact of his father’s loss of income on his enrolment.

29. Accordingly the Tribunal gives this extenuating circumstance only some weight towards the visa not being cancelled, but not as an exceptional circumstance beyond the applicant’s control, that led to the grounds for cancelling the visa. 

    Past and present conduct of the visa holder towards the Department

30. With no adverse evidence of the applicant’s past or present conduct towards the Department, the Tribunal gives this factor some weight in his favour.

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

31. 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

32. 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. The applicant did not demonstrate much detailed knowledge about this factor.  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

33. The applicant does not have a spouse or any dependents. 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

34. During the scheduled hearing, the applicant did not advance any specific claims that that he faces a well-founded fear of persecution for a nexus reason relevant to the Refugees Convention or any other reasons might breach other humanitarian obligations under other international treaties or protocols.  The Tribunal notes that it remains open to the applicant to seek Australia’s protection obligations and therefore it gives this factor a little weight in favour.

    Any other relevant considerations

35. As discussed in the hearing, the Tribunal noted the applicant arrived in Australia as a very young adult. Unaccompanied, it was the first time in the applicant’s life that he was without parental supervision in an unfamiliar country. It is not uncommon for such young student visa holders to lose focus of academic goals or to be even unsure of them.  The distractions and diversions of early adulthood do not necessarily amount to the applicant not being a genuine student or the purpose of his travel and stay in Australia is not study. While this in no way diminishes the seriousness of the applicant’s non-compliance of condition 8202, there is sufficient evidence before the Tribunal to find the applicant is a conscientious student motivated to complete his degree level coursework.

36. Based on a cumulative assessment of the evidence, the Tribunal is satisfied that the applicant is a genuine student who is willing and capable of upholding the conditions on his visa, given he has the financial capacity to meet regular payments of tuition fees and reached a level of maturity commensurate with his academic goals.  It places considerable weight on this finding in favour of the visa not remaining cancelled.

    Conclusions

37. 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.

38. Considering the evidence provided and on weighing the above factors, the Tribunal has placed more weight on its cumulative findings and evidence in favour of not cancelling the applicant’s student visa over those countervailing findings and evidence in favour of having the visa remain cancelled.

39. The Tribunal notes Class TU Subclass 573 visas are not available to the applicant, as the Minister has made reductant Subclasses 570 through to 576 visas which were replaced by Class TU Subclass 500 student visas on 1 July 2016.

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

41. The applicant should be aware that the Tribunal only reached this decision marginally in his favour. 

    DECISION

42. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU Higher Education Sector visa.

    Brendan Darcy
    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.