Phan (Migration)

[2019] AATA 3598

Phan (Migration) [2019] AATA 3598 (29 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Khanh Le Phan

CASE NUMBER:  1835432

HOME AFFAIRS REFERENCE(S):           BCC2018/4065442

MEMBER:Vanessa Plain

DATE:29 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 29 July 2019 at 12:49pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – applicant did not comply with condition 8202 – applicant ceased to be enrolled in a registered course of study – demonstrated history of being a diligent student – being wrongfully imprisoned – suffered from severe anxiety and depression – documents of a medical and legal nature provided – genuine about completing the qualification– decision under review set aside

LEGISLATION
Migration Act 1958, ss 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 November 2018 made by a delegate of the Minister for Home Affairs 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 was not enrolled in a registered course and was thus in breach of a condition of her student 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 25 July 2019 to give evidence and present arguments.   

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.    An examination of the Delegate’s file and the Tribunal’s file reveals that the applicant was initially granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa in November 2014 for the purpose of undertaking a Bachelor of Business and Accounting at the Queensland University of Technology.  The applicant did not complete the entirety of this degree, in her evidence she confirmed that the obtained a credit for her successful study towards a different degree in which she enrolled when she moved to Melbourne.  Upon her relocation to Melbourne, she enrolled in a Bachelor of Business and Finance degree at the Kaplan Business School.  Prior to undertaking both these degrees, the applicant successfully completed English studies in Brisbane.  The applicant has a demonstrated history of being a diligent student.

1. The applicant received a further Student Visa in May 2017, however, her enrolment was cancelled on 30 November 2017 and a Notice of Intention to Consider Cancellation (NOICC) of the visa was sent to the applicant on or around 29 October 2018.

2. At the hearing, the applicant candidly admitted that she was not enrolled in a registered course since in the period from 30 November 2017 to November 2018 and that she received the NOICC in November 2018.  The applicant gave detailed reasons, both orally and in writing, as the circumstances that led to the cessation of her studies, which she provided to the Department upon receipt of the NOICC and to the Tribunal at the hearing, which are set out in detail below.    

3. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant was not enrolled in a registered course at the time she received the NOICC.   Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

4. 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.

5. 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 the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia 

6. The applicant has demonstrated a diligent attitude to previous studies in Australia.  She successfully completed a course in English studies, her written and oral language skills are exemplary.  The applicant was enrolled in a Bachelor of Business and Accounting at the Queensland University of Technology, which she partially completed before moving interstate to Melbourne.  The applicant gave evidence that she enrolled in a Bachelor of Business and Finance degree at the Kaplan Business School, for which she did one term’s study which she successfully completed, save for one subject.  The applicant gave further evidence that she received a partial credit for her studies in Queensland towards her studies in Melbourne.  She undertook a term of study between July and November 2017 approximately, after which time her enrolment was cancelled. 

7. The applicant further gave evidence that it is her intention to return to Vietnam after completing her studies, as her mother and brother live in Vietnam and she does not have family or ties to Australia.  The applicant is unmarried and lives with a flatmate in Melbourne.  If the outcome of this review is successful, her intention is to complete the degrees at the Kaplan Business School, for the purpose of returning to her home country with some form of qualification that will assist her in the job market in Vietnam.    

8. The Tribunal finds that the applicant has no compelling need to remain in Australia permanently and that she has demonstrated her purpose as being to study.  I give these factors some weight towards the visa not being cancelled.     

   The extent of compliance with visa conditions

9. As above, the applicant has not complied with condition 8202(2).  However, as below, I find that the applicant had a compelling reason for the breach based on her evidence below, namely, that the circumstances that led to the breach were not reasonably within her control. Whilst I find that the applicant did breach the condition, given the circumstances of the breach, I give this no weight towards the visa being cancelled. 

10. Further, there is no evidence of any other visas that the applicant has held previously, namely another student visa and a student partner visa, not being complied with. 

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

11. The applicant gave evidence and provided various bank statements which demonstrate the financial hardship she would endure for no productive reason if she were to return home without having completed her studies.  Further, it would be emotionally and psychologically difficult to return home without having completed studies, in circumstances where the primary reason for the applicant’s non completion of studies, was due to the serious mental health complications she endured as a result of being imprisoned for 6 months and then being freed with all charges dismissed.  The circumstances of the applicant’s incarceration are set out in detail below.      

12. The Tribunal accepts that the cancellation has led to personal detriment for the applicant, which would be compounded by the continuation of the cancellation and the Tribunal therefore gives this some weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

13. The circumstances that led to the cancellation of the applicant’s visa are compelling and have been described by the applicant in writing, in her evidence at the hearing and are further supported by independent contemporaneous documents of a medical and legal nature.   

14. The applicant gave evidence that between September 2016 and March 2017, she was held without bail in prison as a result of being arrested and charged with possession with intention to distribute cannabis.  These charges arose as a result of the police locating drugs at a house she shared with her brother at the time.  The drugs belonged to her brother and he was ultimately charged and served a prison sentence.  The police initially and erroneously thought the cannabis belonged to the applicant.  The applicant was subsequently released from remand and all charges were dropped.  The applicant produced to the Tribunal various documents from the relevant legal authorities which clearly demonstrate that all charges against the applicant were withdrawn. 

15. As a result of being wrongfully imprisoned, the applicant developed and suffered from severe anxiety and depression which severely impacted upon her ability to study.  Although she undertook a term of study, her poor health overwhelmed her.  The applicant has produced 5 medical certificates ranging between March 2017 and November 2018.  These documents clearly demonstrate and establish her serious health issues and the medication prescribed as a result of her health issues.   

16. When it became apparent to the applicant in November 2017 that she needed to defer her studies due to her poor health after being wrongfully imprisoned, the applicant gave evidence that she made an online attempt to defer her studies, but missed the cut off date to apply for a deferral, which resulted in the cancellation of her enrolment. 

17. The applicant promptly notified the Department of the above matters in response to the NOICC she received

18. The applicant has provided the Tribunal with contemporaneous documents of a medical and legal nature verifying the matters set out above.  The Tribunal places weight in favour of the applicant by the production of these documents and the candid and frank explanation of these matters in oral evidence.    

19. The Tribunal accepts that the totality of the above matters contributed significantly towards the applicant’s breach of her visa condition.  These are matters not within the reasonable control of the applicant and on the basis of the matters set out above, it cannot be suggested that the applicant has acted imprudently, or in bad faith, or attempted to avoid her studies.  

20. The Tribunal therefore gives the above evidence significant weight towards the visa not being cancelled. 

    Past and present behaviour of the visa holder towards the Department

21. The applicant has conducted herself in good faith in her dealings with the Department.  This is demonstrated by the fact that she responded immediately and frankly to the NOICC and gave evidence at the hearing, consistent with her response to the Department.  I give this significant weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

22. Not applicable.

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

23. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and most importantly to the applicant, would not be able to complete any study before returning home to Vietnam.  Given the circumstances set out above, this would be manifestly unfair and I give this some weight in favour of the visa not being cancelled. 

    Whether 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

24. Not applicable.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

25. Not applicable.

    Any other relevant matters

26. The applicant stated that she pursued educational opportunities while imprisoned, namely, she obtained a forklift licence and a business certificate.  The Tribunal gives this some weight in favour of not cancelling the visa, as it demonstrates further that the applicant’s purpose in being in Australia is to gain educational qualifications. 

27. As above, it is clear that the breach does not reveal any bad faith on the part of the applicant and arose due to matters that were not, in fairness, within her reasonable control.  It is also clear that the considerations I have arrived at, upon examining all the evidence before me, lean towards the visa not being cancelled and I so find.

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

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Vanessa Plain
    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.