Phan (Migration)

[2019] AATA 2361

Phan (Migration) [2019] AATA 2361 (24 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Phuong Phan

CASE NUMBER:  1730057

HOME AFFAIRS REFERENCE(S):           BCC2017/2997994

MEMBER:Stephen Conwell

DATE:24 June 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 24 June 2019 at 3:27pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – credible witness – contrition – genuine student – responsibility for compliance with visa conditions – degree of hardship – separation from Australian-citizen husband – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.40A; Schedule 2 cls 573.223, 573.231; Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 November 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that it appeared that the applicant had not continued to be a person who would satisfy either cl.573.231 or cl.573.223(1A), and therefore was not a person who would satisfy the primary criteria for the grant of the visa and therefore had not complied with condition 8516. 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 23 May 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. The applicant was represented in relation to the review by her registered migration agent. The Tribunal also received oral evidence from the applicant’s partner, Mr Phuoc Dat Nguyen.

5. 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

6. Under s.116 of the Act, the Minister may cancel a visa if she 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?

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal 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. This condition requires that the holder must continue to be a person who would satisfy the criteria for the grant of the visa.

8. On 11 March 2015 the visa holder satisfied the primary criteria for a class TU-573 Higher Education Sector visa (‘573 Student visa’). The criteria for the grant of the student visa required the visa holder to meet, among other criteria, subclause 573.231 or subclause 573.223(1A). The delegate was satisfied the visa holder met the requirements of these subclauses and granted the applicant a 573 Student visa on 11 March 2015 with condition 8516 attached.

9. According to the Provider Registration and International Student Management Systems (PRISMS), it appeared to the delegate that the applicant was no longer enrolled in a bachelor’s degree or master’s degree course and 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.

10. As there appeared to be a ground for cancellation of the applicant’s visa under paragraph(s) s116(1)(b) breach of condition - 8516 of the Act, she received a written notice of the intention to consider cancellation (NOICC) on 20 September 2017 and invited to respond in writing. The applicant submitted written responses on 3 October 2017, 15 November 2017 and 20 November 2017. In her responses she did not dispute there are grounds for cancellation.

11. At hearing the applicant confirmed that she first arrived in Australia in March 2015. At the time she was 19 years of age and intending to study business and management at Deakin University, commencing with an English language foundation course. She found the English course too difficult and withdrew after 10 weeks of attendance.

12. Her enrolment at Deakin University was then cancelled and she enrolled at TK Melbourne where she completed a Certificate III in EAL (English as an additional language) in February 2016.  She transferred enrolment to St. Peter Institute where she completed a Certificate IV in Business in October 2016.

13. On the basis of this information the Tribunal finds that the applicant has not maintained enrolment in a bachelor or Masters course (as evidenced by a certificate of enrolment or letter of offer) since cancellation of her initial enrolment at Deakin University;  therefore she has not  satisfied cl.573.231 or cl.573.223(1A), It follows that she has breached condition 8516 because she did not continue to be a person who would satisfy the criteria for the grant of the visa.

14. 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 power to cancel the visa should be exercised.

    Consideration of discretion

15. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

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

16. The applicant stated at the hearing that her purpose on coming to Australia was to study at the Bachelor level. the Tribunal accepts that this was her intention. She explained that studying English was a far greater challenge than she had anticipated, as were the difficulties of moving to a foreign country as a 19 year old.

17. The applicant said that if she was allowed to hold the 573 visa she intends to study and comply with conditions on the visa. She said that her family has always been supportive of her and wants her to study, and she has enough money to undertake the course. She admitted to breaching the visa conditions and demonstrated contrition, noting that it was her ignorance and poor advice from her migration agent at that time which that had led to her present situation; she acknowledges her wrongdoing.

18. The Tribunal found the applicant to be a credible, although not particularly voluble witness. It may that the applicant is overly optimistic of her ability to study in the Higher Education sector in English, however  the Tribunal finds that the applicant has not intended to deliberately mislead or act in bad faith in regard to her study history and the circumstances of her time onshore. The Tribunal gives this factor significant weight in her favour.

    reason and extent of any breach of a visa condition (if relevant)

19. The breach of condition 8516 appears to have been for a considerable period of the overall time that the applicant has spent onshore. The Tribunal gives this significant weight in favour of the visa remaining cancelled. Whilst the Tribunal accepts the applicant’s claims that she was misled by her agent and not fully aware of the visa conditions, as the visa holder it is her responsibility to comply with visa conditions whilst holding the visa. She could have, and indeed should have, apprised herself of these matters.

    degree of hardship that may be caused

20. The Tribunal accepts the applicant’s evidence and that of her husband, as well as the marriage certificate in finding that the applicant married an Australian citizen on 7 October 2018, the Tribunal considers that if her visa is cancelled, and she may be forced to depart Australia, this would cause significant stress to her marriage and hardship to her husband. Whilst it is possible that her husband might consider returning to Vietnam with her, should her visa cancellation stand, the Tribunal accepts that this would be more disruptive to their shared life together. The Tribunal gives this factor significant weight in considering that the visa should not be cancelled.

    circumstances in which ground of cancellation arose

21. The circumstances in which the ground for cancellation arose are described above. The applicant explained that she had great difficulty studying even in the initial EAL course. The Tribunal considers that the applicant may be overly ambitious in seeking to study at the tertiary sector, however it accepts that she has a genuine desire and a commitment to study. The Tribunal gives this factor significant weight in considering that the visa should not be cancelled.

    past and present conduct of the visa holder towards the department

22. The applicant has been compliant in her dealings with the Department. She has indicated at the hearing her willingness to comply with immigration laws. She has admitted to her breach and in the Tribunal’s view, demonstrated, genuine contrition. The Tribunal give this factor some weight in considering that the visa should not be cancelled.

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

23. Not relevant

    whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

24. The cancellation would presumably result in the visa holder being unlawful and subject to detention pending return. If this occurred the Tribunal considers it most likely the applicant would depart for Vietnam, as she indicated there was no reason she could not return there. The Tribunal give this factor no weight.

    whether there would be consequential cancellations under s.140

25. Not relevant

    whether any international obligations would be breached as a result of the cancellation

26. There is no evidence that there would be.

    the impact on any victims of family violence

27. Not relevant

    any other relevant matters raised by the visa holder.

28. There were no significant other factors raised by the applicant.

29. In this case the Tribunal has regard to the applicant’s credibility, her contrition, and her genuine intention to study at the appropriate level. It also gives weight to her marriage to an Australian citizen. These are significant considerations which the Tribunal gives weight to. On balance, these factors persuade the Tribunal that the correct and preferable decision in this case is to allow the applicant to continue her studies and remain in Australia. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Stephen Conwell
    Member