Phan (Migration)

[2019] AATA 6296

Phan (Migration) [2019] AATA 6296 (15 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Nam Phan

CASE NUMBER:  1901264

HOME AFFAIRS REFERENCE(S):          BCC2018/4229347

MEMBER:David Thompson

DATE:15 September 2019

PLACE OF DECISION:  Perth

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

Statement made on 15 September 2019 at 10:44pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –applicant did not comply with condition 8516– applicant ceased study – enrolment had been cancelled –  decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 48, 116, 189, 198
Migration Regulations 1994 (Cth), cls 573.111, 573.112, 573.231,rr 1.40A, 2.02

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 18 January 2019 made by a delegate of the Minister for Home Affairs 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(1)(b) on the basis that the applicant had been non-compliant with a condition of his visa, namely, condition 8516 requiring him to continue to satisfy the primary and secondary criteria for the grant of his 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 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. 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

5. 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)(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?

6. 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 attached to the applicant’s visa.

7. 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 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.

8. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

9. 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, masters 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 education providers as eligible education providers for this visa was IMMI 15/003.

10. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type 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. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015.

11. The applicant was granted a Subclass 573 Higher Education Sector visa on 5 June 2015. At that time, the applicant was enrolled in, and held a Confirmation of Enrolment (CoE) for, a Bachelor of Business at Murdoch University. The applicant was also enrolled in an English course at Perth International College of English, which he was to complete before commencing studies for his Bachelor of Business degree. The applicant gave evidence at hearing that after 4 months of studying English he became ill, and after consulting a doctor was advised to take a month off studying. He received a medical certificate to that effect. The applicant was asked at hearing about the nature of his illness. He stated that he was “allergic” to the cold weather in Australia, having come here from Vietnamese summer.

12. It was not clear from the applicant’s evidence whether he arranged a deferral or suspension of his studies on the basis of that medical certificate. He clearly stated, however, that he did take some time off studying, and that he did not attend his college on the day he had planned to return as he was still not feeling altogether well. The applicant stated that after that day, he received an email from his college stating that his enrolment had been cancelled.

13. The applicant was asked at hearing whether his CoE for his Bachelor of Business course was also cancelled. He stated that it was, and as a result of cancellation of his CoE for his English course. He agreed that the date of cancellation of his CoE for his Bachelor of Business course was 8 December 2015, the date identified by the delegate in his decision record. The applicant was asked whether he had been enrolled in a Bachelor’s degree course at any time after that date. He stated that he had not.

14. On the basis of this evidence, the Tribunal finds that the applicant was in breach of condition 8516 of his visa from 8 December 2015 until the date of hearing, because during that period he was not a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of his Subclass 573 Higher Education Sector visa.

15. 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 visa should be cancelled.

    Consideration of discretion

16. 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’.

17. As at the date of cancelation of his visa, the applicant had been in breach of condition 8156 on his visa for a little over 3 years. This is a very considerable period of non-compliance, and weighs heavily against the applicant and in favour of affirming the delegate’s decision.

18. The applicant gave evidence at hearing as to how the breach arose. The applicant’s account is summarised at paragraphs 11 and 12 above. At hearing, the applicant was asked precisely why his CoE for his English course had been cancelled. He was unable to explain this with any degree of clarity, even allowing for the fact that the hearing was conducted with the assistance of an interpreter. His evidence was that he thought that his CoEs had been cancelled because he had not paid all his course fees on time, although he had paid a first instalment of $1,500. He stated that he had tried to speak to his college in an attempt to have his enrolment reinstated, but that the college would not agree. Once again, he was not clear as to the college’s reasons.

19. The Tribunal notes that the applicant provided a response dated 10 January 2019 to the Department’s Notice of Intention to Consider Cancellation (NOICC). In that response, the applicant stated that while he was studying his initial English course his family suffered a series of tragedies, and that this had caused him extreme stress and had resulted in his falling behind in his course attendance. The applicant’s statement treats non-payment of fees as the reason his CoE was cancelled. In it, he says that he had paid a first instalment of $1000 towards his fees and had asked permission to pay the balance in the following week, but that on the day he was due to make payment he had a high fever and could not attend at his college to make payment. He had planned to attend the next day to make payment, but his CoE was cancelled without any final reminder from his college. At hearing, the Tribunal asked the applicant about the family tragedies he had mentioned in his response to the NOICC. He stated that he did not remember mentioning any family tragedies, but said that his brother had been involved in a serious accident, and had spent a month in hospital in a deep coma.

20. The explanation given in the applicant’s response to the NOICC is consistent with his evidence at hearing to the effect that the grounds upon which his CoEs were cancelled was non-payment of fees. However, his evidence at hearing was inconsistent with his response to the Department’s NOICC in that the response says nothing about the applicant obtaining a medical certificate. Rather, it attributes his non-attendance to severe stress. The applicant did not provide any documentary evidence corroborating the evidence he gave on this point at hearing, such as a copy of his medical certificate. The Tribunal does not that evidence, and finds the account given in his response to the Department’s NOICC to be the true reason for his non-attendance.

21. The circumstances giving rise to the applicant’s initial breach of condition 8156 were not, on the account the Tribunal has accepted, entirely of his own making, although it appears that he could have avoided the breach relatively easily by paying his course fees when they were due. The applicant gave no explanation for his failure or inability to pay those fees when they were first due, despite the fact that he must have satisfied the Department as to his financial capacity in applying for his visa in the first place. For these reasons, the Tribunal gives the circumstances in which the applicant’s breach arose only a little weight in the applicant’s favour in deciding whether his visa should be cancelled.

22. The Tribunal asked the applicant whether he had taken any steps to find alternative enrolments after his CoEs were cancelled. He stated that he had. He said that he had sought legal assistance, and with that assistance had enrolled in an English course with an education provider known as Australia Ideal College. He stated that he did not finish that course, because he had not been able to get along with his classmates and found his teachers unhelpful, and that he left the course in about April 2017. He then undertook a Diploma of Project Management at Australasia International School. Having successfully completed that course, he enrolled in a further English course, which he was studying when he received the NOICC.

23. The Tribunal asked the applicant whether, at the time of the cancellation of his Bachelor of Business CoE, he had known that he needed to maintain enrolment in a Bachelor’s degree level course to comply with the conditions on his visa. The applicant said that he did not, but that he had been told this in about May 2017, when he was studying for his Diploma of Project Management. When asked whether he had taken steps to find enrolment in a Bachelor’s degree programme at that point, the applicant stated that he thought he still had time to obtain such an enrolment after he had finished his Diploma of Project Management, and was completing the paperwork to apply for a Bachelor’s degree programme (and to apply for a further visa) when he received the NOICC.

24. Any person who applies for a student visa must in the course of the application undertake to observe any conditions placed on that visa, and is therefore responsible for informing themselves as to what those conditions are and what they require. The applicant should for that reason have taken immediate steps to regularise his position on the cancellation of his original CoEs, whether that involved obtaining enrolment in a Bachelor’s degree course, or approaching the Department to deal with the issue in some other way. The applicant had ample time to so, even after the date upon which on his own evidence he became aware of the need to do so. However, at the date of hearing there was no evidence that he had taken any such steps before receiving the Department’s NOICC. The Tribunal gives this factor some weight as a circumstance in favour of affirming the Delegate’s decision.

25. There was no evidence before the Tribunal suggesting that the applicant had any purpose in coming to Australia other than undertake and complete the course of study in which he originally enrolled. Nor was there any evidence before the Tribunal that the applicant had remained in Australia for any reason other than to study. The applicant was asked at hearing whether he had any need to travel to or remain in Australia in future. His response was that, apart from finishing the course of study he came here to undertake, he had no such need. Overall, the Tribunal gives this factor a little weight in favour of the applicant.

26. The Tribunal asked the applicant at hearing whether he would suffer any hardship as a result of cancelation of his visa. The applicant said that he would not have such a good future in Vietnam without a Bachelor’s degree. Other than that, he could not identify any particular hardship he would suffer.

27. The Tribunal gives this factor only slight weight in the applicant’s favour, for the following reasons:

    a.Firstly, the applicant is at the time of decision 27 years of age. It is by no means clear on the evidence before the Tribunal that a Bachelor’s degree is necessary for his future advancement, but it is still possible for him to obtain one before he is too old to make use of it, even if that degree is not the degree he applied for a visa to study, or an Australian degree at all.

    b.Secondly, in responding to the Department’s NOICC, the applicant provided evidence that he has a job waiting for him in Vietnam, as the head of the business office at the Viet Vuong Printing Technology Joint Stock Company. At hearing, the applicant stated that this job was still his when he returned to Vietnam. His evidence was that his salary would be considerably better with a Bachelor’s degree than without one, but even so he will not return to his home country without a livelihood.

28. There is no evidence before the Tribunal that the applicant has been uncooperative in his dealings with the Department, or has acted in bad faith in any way. The Tribunal gives this factor a little weight in the applicant’s favour.

29. There is no evidence before the Tribunal that any other person’s visa depends on the applicant retaining his visa. Indeed, the applicant stated at hearing that this was the case. The Tribunal gives this factor no weight, either for or against the applicant.

30. If the applicant’s visa is cancelled, he may possibly in due course become an unlawful non-citizen liable to be detained under s.189 of the Act, and may ultimately become liable to be removed from Australia under s.198 of the Act. He will also, whilst still in the migration zone (as defined in s.5 of the Act), be barred from applying for a further visa to enter Australia for a period of three years, unless his further application falls within one of the categories of application listed in Regulation 2.12. However, there are simply ordinary consequences of breaching condition 8516 and as such are detriments to be expected. The Tribunal takes the view that in the circumstances of the current case this is a neutral factor, weighing neither for nor against cancellation.

31. There is no evidence before the Tribunal suggesting that cancelling the applicant’s visa will amount to a breach of Australia’s international obligations, including non-refoulement obligations. The Tribunal gives this factor no weight, either for against the applicant.

32. No other relevant matters are raised by the evidence before the Tribunal.

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

    DECISION

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

    David Thompson
    Member