Phan (Migration)

[2020] AATA 3379

Phan (Migration) [2020] AATA 3379 (3 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Kieu Oanh Phan

CASE NUMBER:  2002544

HOME AFFAIRS REFERENCE(S):          BCC2019/3389290

MEMBER:Vanessa Plain

DATE:3 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 03 July 2020 at 1:00pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a higher level course ceased – genuine student – multiple course cancellations – applicant changed to vocational course – family medical and financial hardship – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 116, 119
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) of the Act on the basis that the applicant is not, or is not likely to be, a genuine student. 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 9 June 2020, a written invitation was sent to the applicant to attend a telephone hearing at the Tribunal on 24 June 2020 at 9:30am.  The applicant was further advised to submit any documents upon which they may wish to rely, to the Tribunal in advance of the hearing date.

4. On or about 18 June 2020, the applicant provided a signed hearing response to the hearing invitation to the Tribunal in which they stated that they would not participate in the hearing and consent to the Tribunal determining the matter on the papers  and without taking further steps to allow the applicant to appear. 

5. The applicant did not provide any new information to the Tribunal in support of their review application.  Therefore, the Tribunal has considered and had regard to the material before the Department and the delegate’s decision record.

6. 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

7. 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 grounds set out in s.116(1)(fa)(i) of the Act.

8. 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?

9. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

10. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

    Particulars of the ground for cancellation

11. Information before the Department appeared to indicate that the applicant has not been or is likely not to be, a genuine student. Student visas are granted for the purpose of studying towards and obtaining an educational qualification in Australia. A student visa holder may be considered not to be a genuine student if it appears that their primary intention is not, or is likely not to be, to undertake study in Australia.

12. The applicant’s visa was granted on 27 May 2017 for the purpose of undertaking a study pathway which, once complete, would provide them with a qualification at the Bachelor level. At time of grant of their student visa, the applicant held a Confirmation of Enrolment (CoE) for the following course at Holmes Institute:

    ·Bachelor of Business

13. Department records indicate that the applicant held a previous Student (Class TU Higher Education Sector (subclass 573) visa granted on 24 July 2013 which ceased on 15 March 2017. 

14. The Department has access to the Provider Registration and International Student Management System (PRISMS) which contains the enrolment and study records of overseas students in Australia. PRISMS indicates the applicant commenced studying the Bachelor of Business at Holmes Institute on 13 March 2017. However, after her current visa was granted on 24 May 2017, her enrolment in this course was cancelled on 5 September 2017 due to ‘Student Notifies Cessation of Studies’.  Her last date of study in this course was 25 August 2017.

15. The Delegate’s decision records sets out in significant detail the subsequent enrolments in courses obtained by the applicant for various study pathways which she never studies.  COEs were approved then cancelled.  Those courses are set out as follows:

9110CD25	Certificate IV in Massage Therapy	Malvern International College	22/08/2017	13/10/2017
94F0E872	Certificate IV in Project Management Practice	Malvern International College	13/12/2017	28/02/2018
94F0F255	Diploma of Leadership and Management	Malvern International College	13/12/2017	01/03/2018
9801BA93	Certificate II in EAL (Access)	Malvern International College	28/02/2018	01/03/2018
9801D761	Certificate III in EAL (Further Study)	Malvern International College	28/02/2018	01/03/2018
98101484	Certificate IV in Project Management Practice	Malvern International College	01/03/2018	15/03/2018
98683C83	Diploma of Leadership and Management	Windsor College	09/03/2018	20/11/2018
AAB6E376	Diploma of Leadership and Management	Dalton College	13/06/2019	18/11/2019

1. The delegate’s decision record further discloses that the applicant has only successfully completed one course since being onshore, a Certificate IV in Leadership and Management in June 2019 and that she is currently enrolled in a Bachelor of Business (Management) which is scheduled to conclude in October 2022.

2. PRISMS and departmental records indicated to the Delegate, as set out in the decision record, the following:

   • The applicant first arrived in Australia on 8 August 2013 and has never departed.
   • The applicant has been granted two Student visas, both of which for the purpose of studying at the Higher Education Sector in Australia.
   • The applicant was granted her current visa on 24 May 2017
   • The applicant did not hold any valid enrolment for a period of approximately two months from 14 October 2017 to 12 December 2017
   • The applicant has not held enrolment at the correct AQL level for her current visa granted (Level 7 – Bachelor Degree) for 24 months as follows:

   o The last Bachelor Degree course [Bachelor of Business CoE 87448251] was cancelled on 5 September 2017

   o The current Bachelor Degree course [Bachelor of Business (Management) CoE B0861360] was approved 25 October 2019

   oThe applicant has only completed courses at the vocational education level during her period of stay in Australia.  These courses are as follows:

   oEnglish for Further Studies

   oCertificate III in EAL (Further Study)

   oCertificate IV in EAL (Further Study)

   oCertificate IV in Leadership and Management

   oDiploma of Business

   oThe applicant has studied in the Higher Education Sector only during the following periods:

   oFive months from 13 March 2017 to 5 September 2017, while holding enrolment in the Bachelor of Business with Holmes Institute; and

   oOne month from 28 October 2019 to the date of the Notice of Intention to Consider Cancellation, in the Bachelor of Business (Management) with Cambridge International College.

3. Based upon the above information, the delegate for the Minister formed the following view, as set out in the Decision record (verbatim):

   ·‘The visa holder has not maintained the educational pathway for which the visa was granted and she has not meaningfully pursued any alternate pathway that would enable her to achieve an equivalent educational qualification. This appears to indicate that she does not have a genuine intention to study at the higher degree level.’

   ·‘At the date of the NOICC, the visa holder has held the current Student visa for 30 months. PRISMS indicates that in this period, the visa holder has held valid enrolments for a total of 28 months, however her total period of actual study is only 22 months. It therefore appears that the visa holder has consistently failed to meaningfully participate in courses since the grant of her visa’

   ·‘The visa holder’s enrolments have consistently been cancelled for the following various reasons:

   o   Student notifies cessation of studies

   oChange to a course in the same sector, no gap, but longer study duration

   o   Student left provider – transferred to course at another provider

   o   Chance to student enrolment

   o   Non-payment of fees
   o   Change to CoE/Student details

   o   Non-commencement of studies’

   ·‘It appears that the visa holder has carefully enrolled in a new course of study as soon as the previous course is cancelled.’

   ·‘The visa holder has engaged three different education providers to issue CoEs at different times to minimise her non-enrolment period and therefore appears to comply with condition 8202.’

   ·‘The visa holder obtained enrolment in the Bachelor Degree level only to benefit from a grant of a Higher Education Sector visa but she does not have a genuine intention to study at this level.’

   ·‘The visa holder has been residing in Australia since August 2013, which has been approximately six years, and never departed. This indicates that you may be using the Student visa program to maintain residency in Australia for a purpose other than to study.’

4. As set out above, the applicant has not provided any information to the Tribunal in support of her application for review.  The Tribunal has therefore considered the material before the Department and in having done so, reaches the same conclusions as set out in the Delegate’s decision record above.  

5. The applicant has demonstrated a serious lack of academic achievement and progress.  The applicant’s consistent and sustained failure to participate in courses in which she clearly enrolled, appears to indicate that her primary intention is not, or is likely not to be, to undertake study.  Despite repeatedly obtaining new enrolments, the applicant has not made reasonable progress towards achieving a qualification at the level for which her particular visa was granted.  On that basis, the Tribunal reasonably infers that the applicant is obtaining enrolments as a means to retain a student visa, rather than because she has a genuine intention to study.  It therefore appears that the applicant’s primary intention is not, or is likely not to be, to undertake study.

6. Based on this information, it appears there are grounds to cancel the applicant’s visa under s116(1)(fa)(i) of the Act because it appears she is not, or is likely not to be, a genuine student.

7. On 27 November 2019 the applicant was sent a Notice of Intention to Consider Cancellation of visa (NOICC).  She responded in writing on 11 December 2019 and she did not agree that there were grounds for cancellation. 

8. The delegate set out in significant detail the reasons provided by the applicant to support her contention that there are not grounds for cancellation.  The applicant’s reasons, as set out extensively in the decision record, are as follows (verbatim):

o      ‘She was unable to study the Bachelor of Business for which her Student visa was granted as the high level of study was new to her, and she was not able to keep up with the fast pace of study, and ultimately, she could not pass the subjects.’

o      ‘When she asked for money from her parents to pay for the second semester, she was not able to provide them with good academic results.’

o      ‘At this time, her grandfather became unwell. He was admitted to hospital for surgery, but he did not recover. Her mother had to quit her job to look after him, and she could not go to work to support the family. They did not have the money to pay for the visa holder’s school fees given the circumstances.’

o      ‘At the same time, the visa holder was at the risk of being excluded due to many failed units, so she dropped out of the Bachelor.’

o      ‘She enrolled in a short Massage Therapy course with the hope of returning to Bachelor level study when her family’s financial situation improved, however she did not enjoy it so she decided to transfer to Project Management as she thought it was similar to Business study.’

o      ‘However, she missed the orientation due to a miscommunication with the school, so she had to wait a further six months to enrol or choose another course. She was not allowed into the course in the summer of early 2018, and was eventually enrolled in English courses which she claims she did not want to study. She was discouraged and lost interest in studying at Malvern Institute, so she decided to move to another school.’

o      ‘She tried to apply in a Bachelor course at another college but she was not accepted due to her low level of academic progress. She claims [she] needed to complete a Diploma in a similar field, so she chose a Diploma of Leadership and Management at Windsor College.’

o      ‘Halfway through the course, her father’s fishing business ran into trouble due to storms in Vietnam. She was hoping they would send her further money for enrolment into the Bachelor, and was struggling with the situation as she did not know how her study would be funded in the future. Her family advised her to focus on finishing a course.’

o      ‘Eventually, she finished a course and passed a test to enrol in the Bachelor of Business at Cambridge International College.’

o      ‘Her grandfather passed away recently, and left her parents a share of his house. Her family now has the money for her tuition fees. Her father’s savings are improving as the business is getting better.’

1. In support of the aforementioned reasons the applicant provided various supporting documents to the department, as follows:

o      Supporting statement and translation from her mother dated 4 December 2019;

o      Mother’s birth certificate and translation;

o      Her own birth certificate and translation; and

o      Grandpa’s death certificate dated 8 October 2019 and translation.

1. Based upon the matters set out above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(aa)(i) of the Act exists and that the applicant’s primary intention is not, or is not likely to be to undertake study, and therefore, the applicant is not is not, or not likely to be, a genuine student.

2. The reasons for the Tribunal’s finding that the grounds for cancellation are made out, are as follows:

   ·The applicant’s visa was granted on 24 May 2017 to enable her to study a Bachelor of Business, however, her course was cancelled on 5 September 2017 for failure to re-enrol, with her last day of study being 25 August 2017, approximately 3 months after the visa was granted, and less than 6 months after the course commenced.  The Tribunal is concerned by aforementioned timing, which that the COE was obtained for the purpose of the grant of a further student visa, rather than due to a genuine desire to study;

   ·The Tribunal acknowledges the applicant’s claims that she was unable to keep up with the fast pace of study at the Bachelor level, her family was in financial trouble due to an illness of her grandfather and her mother had to stop work to undertake care duties, as the reason for her not being able to afford enrolment in a Bachelor course.  However, the applicant has not provided evidence to substantiate her claims as to her grandfather’s illness, nor evidence from her course provider demonstrating that she was struggling academically, nor any attempts to seek assistance from her course provider to cope with study at the Bachelor level.  The Tribunal considers it reasonable for a student who is genuine and who is struggling academically, to explore all avenues available to maintain their enrolment.  The Tribunal notes further that student visa applicants represent to the Department that they have sufficient funds available to meet course fees and living expenses at the time of application for their visa;

   ·After failing to maintain enrolment in her Bachelor course, the applicant held an extensive suite of COEs at vocational level at Malvern International College from 22 August 2017 to 15 March 2018.  The visa holder stated that ‘due to miscommunication she missed an orientation, and due to poor administration was enrolled in English courses she did not want to complete.’  The Tribunal has difficulty accepting that explanation, given the length of time in question and it further notes that during this period the applicant didn’t actually study these courses;

   ·The applicant has provided no objective evidence to support her contention that she made an attempt thereafter to enrol in a Bachelor course, but was thwarted due to her lack of academic progress;

   ·In March 2018, the applicant enrolled in a Diploma of Leadership and Management and progressed until that enrolment was on 18 November 2018.  The applicant contended that her family ran into financial trouble due to damaging storms affecting her father’s fishing business and provided a statement from her mother purporting to corroborate the applicant’s explanation.  The Tribunal finds the alleged claim of financial difficulty as a basis for cancellation of the Diploma to be inconsistent with the fact that prior to the cancellation of the Diploma of Leadership and Management, the applicant enrolled in a package of a Certificate IV in Leadership and Management commencing 3 September 2018, and a Diploma of Leadership and Management commencing 15 July 2019 at Dalton College.  The claim is inconsistent because the new enrolments would have required the payment of course fees for the COEs to be generated.  The Tribunal therefore does not accept the claims of financial hardship to be genuine in the circumstances;

   ·In June 2019, the applicant finished a Certificate IV in Leadership and Management, then started a Diploma of Leadership and Management before enrolling in a Bachelor of Business (Management) commencing 28 October 2019.  The applicant’s enrolment in the Diploma was cancelled 18 November 2019. The applicant stated that following the death of her grandfather her parents received funds from the estate, which assisted towards payment of tuition fees for further Bachelor study.  The Tribunal cannot be satisfied that the claims of financial hardship are genuine for the reasons set out in the aforementioned paragraph and the Tribunal is concerned by the timing  set out above, as the applicant has obtained enrolment in this course less than six months prior to her current Student visa expiring;

   ·The applicant’s current Student visa was granted in March 2017 and has naturally expired on 15 March 2020.  The decision record discloses that the applicant has only undertaken study at the Bachelor level for which her visa was granted for approximately six months.  There is no evidence before the Tribunal to contradict or qualify that finding.  The applicant has provided no evidence to the Tribunal to indicate that she has progressed in this course before the expiry of her visa. 

   ·Based on the above matters, the Tribunal considers the timing in which the applicant has held enrolments in Bachelor courses, nearing the expiry date of her previous and current Student visas, is to facilitate further visa grants to remain in Australia, and not with the genuine intention to undertake study and progress in any Bachelor courses. The applicant has consistently obtained vocational level enrolments in the remaining two years and two months for which she has held her visa, which may be indicative of an intention to minimize non-enrolment periods, and therefore minimize any non-compliance with condition 8202(2)(a), rather than out of any genuine desire to progress academically; and

   ·Based upon the matter set out above, the Tribunal does not consider that the applicant has demonstrated reasonable academic progression or pursued an academic pathway consistent with achieving a qualification for which her visa was granted.  The Tribunal considers that the applicant has obtained enrolments repeatedly to retain her Student visa and lawful status in Australia, rather than out of a genuine desire to study and obtain a qualification. Therefore, the Tribunal considers the applicant’s primary intention is not, or is likely not to be, to undertake study, and she is therefore not, or is not likely to be, a genuine student.

1. 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

2. 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’.

   Purpose of applicant’s travel to and stay in Australia

3. The applicant has not completed any registered courses for which her visa was granted.  Based on the facts and conclusions set out above, the Tribunal does not consider that the applicant has a genuine intention to achieve an AQF Level 7 qualification.   

4. Based on the facts and conclusions set out above, the Tribunal considers that the applicant is not, or is likely not to be, a genuine student because the Tribunal finds that her primary intention is not, or is likely not to be, to undertake study, which is the purpose for which her visa was granted.

5. The applicant’s significant lack of academic progress and failure to produce corroborating evidence to substantiate her claims of financial hardship and struggle with course contents leads the Tribunal to conclude that the applicant’s primary intention is not, or is likely not to be, to undertake study in Australia. 

6. The Tribunal affords this consideration weight in favour of cancelling the visa.

   The extent of compliance with visa conditions

7. The applicant’s Student visa was granted with conditions 8202(2)(b) and 8202(2)(a) attached. 

8. The applicant did not hold enrolment at AQF Level 7 (Bachelor Degree) from 5 September 2017 to 25 October 2019, and therefore, did not maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted, representing non-compliance with subclause (2)(b) of condition 8202. While the Tribunal acknowledges that her latest enrolment was in compliance with 8202(2)(b), the Tribunal considers the previous period of non-compliance to be substantial.

9. The Tribunal notes that the applicant did not hold a valid enrolment from 14 October 2017 to 12 December 2017, which is a breach of subclause (2)(a) of condition 8202.  The Tribunal considers this brief period of non enrolment to be minor.

10. There is no further information before the Tribunal of non-compliance with other conditions attached to the visa.

11. The aforementioned conditions are crucial to the grant of a student visa and the Tribunal is of the view that the applicant’s non compliance with condition 8202(2)(b) is substantial and not due to extenuating circumstances that were beyond the control of the applicant.

12. The Tribunal gives this consideration weight in favour of cancelling the applicant’s visa.

    The degree of hardship that may be caused to the visa holder and any family members   

13. The applicant was enrolled in a Bachelor of Business at CIC Higher Education on or around the time of the delegate’s decision.  If her visa is cancelled, she will no longer be able to study in this course, which the Tribunal acknowledges may cause her some financial or emotional hardship.

14. There is no information before the Tribunal that indicates the applicant has any immediate family members in Australia who may be impacted by a visa cancellation.  However, the Tribunal acknowledges the applicant’s family have contributed towards payment of tuition fees and they may be disappointed should the applicant’s visa be cancelled, which may difficult for them.

15. he Tribunal acknowledges that the applicant and her family will suffer some hardship and gives this consideration some minor weight against cancelling the visa. 

    The circumstances in which the ground for cancellation arose

16. The grounds for cancellation arose when the applicant remained in Australia for an extended period of time without studying or demonstrating a pathway to an educational qualification, and a complete lack of academic progress, indicating that they are not a genuine student. 

17. The Tribunal has set out above the applicant’s study history above and her statements as set out in her NOICC response. 

18. Based on the evidence and conclusions set out above, the Tribunal is satisfied that the applicant has not demonstrated that there are extenuating circumstances beyond her control which led to and caused the grounds for cancellation to arise.

19. The Tribunal affords this consideration significant weight in favour of cancelling the visa.

    The visa holder’s past and present behaviour towards the Department

20. The applicant substantively responded to the NOICC.  There is otherwise no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.

21. The Tribunal gives this consideration very minor weight against cancelling the visa.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s140

22. The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act.  The Tribunal therefore does not give this factor any weight for or against a decision to cancel the visa for this consideration.

    Legal consequences of a decision to cancel the visa

23. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if she does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent her from applying for certain visas while in Australia.  The applicant would also be affected by Public Interest Criterion 4013, which may exclude her from being granted a visa for a specific period of time in the future

24. However, these are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were not due to extenuating circumstances beyond the control of the applicant, the Tribunal does not consider this to be manifestly unfair and the Tribunal therefore gives this consideration some weight in favour of cancelling the visa.

    Australia’s international obligations

25. There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before the Tribunal, the Tribunal does not give any weight for or against cancelling the visa for this consideration.

    Any other relevant matters

26. There are no other relevant matters to take into consideration.  

27. It is clear based on all the evidence set out above, that the reason for the grounds of cancellation arising was not due to extenuating circumstances beyond the control of the applicant. 

28. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

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

    DECISION

30. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Vanessa Plain
    Member

    
    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.