PHAN (Migration)

[2017] AATA 2439

PHAN (Migration) [2017] AATA 2439 (21 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Han Thuc Nguyen PHAN

CASE NUMBER:  1618030

DIBP REFERENCE(S):  BCC2016/3022350

MEMBER:Michael Ison

DATE:21 November 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 21 November 2017 at 5:04pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Failed to enrol in a registered course – Legal consequences of cancellation – Breach for over 13 months

LEGISLATION
Migration Act 1958, ss 116(1)(b), 362B(1A)(a)
Migration Regulations 1994, Schedule 8 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 27 October 2016 made by a delegate of the Minister for Immigration 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 applicant is Ms Han Thuc Nguyen Phan, a 21 year old Vietnamese citizen.

3.The delegate cancelled the visa on the basis that Ms Phan had not been enrolled in a registered course of study since 4 September 2015, contrary to the requirements of condition 8202(a) of Schedule 8 to the Migration Regulations 1994 (the Regulations).  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.On 23 October 2017, Ms Phan was invited to attend to appear before the Tribunal to give evidence and present arguments in relation to her application for review. The hearing was scheduled for 8 November 2017.

5.On 3 November 2017 Ms Phan’s registered migration agent emailed the Tribunal to advise that Ms Phan would not be attending the hearing. Ms Phan did not withdraw her application for review. The hearing was not cancelled and the Tribunal remained prepared to hear Ms Phan’s application. Ms Phan did not appear before the Tribunal on 8 November 2017.

6.As Ms Phan did not attend the scheduled hearing and given the written response of her registered migration agent, the Tribunal is satisfied that Ms Phan has chosen not to participate further in the review process.

7.Accordingly, this decision is made pursuant to section 362B(1A)(a) of the Migration Act which enables the Tribunal to make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.

8.For the following reasons, the Tribunal has concluded that the decision to cancel Ms Phan’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

9.The Tribunal has had regard to the material contained on Tribunal case file 1618030 and the Departmental case file BCC2016/3022350. Ms Phan provided a copy of the Department’s decision to the Tribunal at the time of making her application for review.

10.The issue in the present case is whether Ms Phan, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations. If Ms Phan has breached that condition, under s.116(1) of the Act, her visa may be cancelled.

Did the applicant comply with Condition 8202?

11.Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that Ms Phan:

·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).

12.In the present case, Ms Phan’s visa was cancelled on the basis she was not enrolled in a registered course.

13.      The Department’s decision dated 27 October 2017 records:

“Based on evidence available to me in the Provider Registration and International Student Management System (PRISMS), Han Thuc Nguyen PHAN has not been enrolled in a registered course of study since 4 September 2015.” [1]

[1] Tribunal file folio 8.

14.The Department’s decision also records that the Department sent Ms Phan a Notice of Intention to Consider Cancellation of her visa (NOICC) on 14 October 2016.

15.Ms Phan responded to the Department’s NOICC by email, sending a 5 page response dated 20 October 2016.  In her response, Ms Phan acknowledges that she was not enrolled for a (unspecified) period of time. Ms Phan’s response did not challenge the enrolment details provided in the Department’s NOICC.

16.Based on the information before the Tribunal, the Tribunal is satisfied that Ms Phan was not enrolled in a registered course of study with an approved provider from 4 September 2015 until Ms Phan’s student visa was cancelled on 27 October 2016. Accordingly, Ms Phan has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

17.Having found that Ms Phan has not complied with a condition of her visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

18.There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or remain in Australia

19.The Department’s decision records that Ms Phan arrived in Australia on 1 September 2013, departing only once for 3 weeks in July 2015. The Tribunal accepts, as the Department did, that at the time of application for her visa Ms Phan’s stated intention was to travel and stay in Australia temporarily to study.

20.However, the Tribunal gives this consideration little weight towards not cancelling Ms Phan’s visa. Ms Phan has failed to enrol in a registered course since 4 September 2015 but has remained in Australia. Prior to the cancellation of her visa, Ms Phan had over 13 months to rectify her failure to maintain enrolment, but did not do so.

The extent of compliance with visa conditions

21.There is no information before the Tribunal to indicate that Ms Phan is in breach of any condition of her visa, other than condition 8202.

22.The Department’s decision letter records that Ms Phan was served an earlier NOICC on 1 December 2014 for an alleged breach of condition 8516. The Department’s decision letter does not record the outcome of that notice process and the Tribunal places no weight on that matter.

23.However, Ms Phan failed to enrol in a registered course for over 13 months prior to the cancellation of her visa. The Tribunal considers the extent of Ms Phan’s non-compliance with condition 8202 to be significant.

24.The Tribunal places considerable weight on this consideration supporting the cancellation of Ms Phan’s student visa.

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

25.      In her response to the Department’s NOICC, Ms Phan stated:

“I would like to point out that I am not a bad student. I have passed every course I took so far and I am serious about studying accounting. If my student visa is cancelled, not only me but my family will suffer a huge setback as they have spent much money on sending me to Australia for my studies. Hence, I sincerely request you to not cancel my student visa through this letter. I hope you can take my circumstances under consideration and the extreme hardship my family will face if my visa is cancelled under consideration.” [2]

[2] Tribunal file, folio 33.

26.The Tribunal acknowledges that the cancellation of Ms Phan’s student visa may be a significant setback for her. As discussed below, the Tribunal does not accept that Ms Phan has satisfactorily explained why she failed to maintain her enrolment and why she did not rectify that breach for so long.

27.The Tribunal expects that Ms Phan was aware of the obligations her student visa placed on her and the potential consequences of breaching any of those obligations, including the possible cancellation of her student visa. Therefore, the Tribunal gives this aspect of this consideration little weight toward not cancelling Ms Phan’s student visa.

28.The Tribunal also acknowledges that the cancellation of a student visa can cause the student’s family significant hardship. The Tribunal is aware that many families of overseas students make considerable sacrifices to be able to send the student overseas to study. A student returning without an overseas qualification may deprive that family of an income stream, at least at the level expected of someone employed with such a qualification.

29.Ms Phan did not explain what the “… extreme hardship…” would be for her family. The Tribunal also does not have any information before it about the financial or other circumstances of Ms Phan’s family in Vietnam.

30.However, as noted above the Tribunal finds that Ms Phan was or should have been aware of the potential impact her breach of her visa could or would have on her family. Therefore, the Tribunal gives some, but only modest, weight to this aspect of this consideration toward not cancelling Ms Phan’s student visa.

Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

31.Summarising her response to the Department’s NOICC, Ms Phan explained the circumstances of her breach of her student visa as follows:

·Ms Phan came to Australia in 2013 to study a package course leading to a Bachelor of Business;

·Ms Phan successfully completed an English for Academic Purpose course, but her package course provider instructed her to complete a further 6 months of English studies prior to starting her package course;

·An (education) agent then advised Ms Phan to transfer her studies to another education provider to avoid the requirement to complete further English language studies.

·Ms Phan instructed the agent to arrange to the transfer but reports the agent failed to get her an offer of enrolment in the next two intakes in July 2014 or October 2014.

·The agent then advised Ms Phan she would need to complete 20 weeks of English Language Intensive Course for Overseas Students (ELICOS) prior to commencing her diploma studies.

·Ms Phan took control of her enrolment situation and was offered enrolment in a package course leading to a Bachelor of Professional Accounting.

·Ms Phan commenced study in March 2015 in the first part of the package, being a Certificate IV in Business.

·In June 2015 Ms Phan found out that her boyfriend had commenced a relationship with her best friend in Vietnam.

·At the same time Ms Phan found out her sister in Australia was pregnant, but was not receiving much help from her husband’s family.

·These events in Ms Phan’s personal life led to her suffering depression, caused her to fall behind in her studies and affected her to the point she eventually lost interest in her studies and ceased going to class.

·Following the birth of her sister’s baby, Ms Phan feels she recovered from her depression and sought to re-enrol in her studies, without success.

·Ms Phan says she is not a bad student, is serious about studying accounting and has passed every course she has taken so far.

32.Ms Phan did not provide any documents to support the claims made in her response to the NOICC.

33.The Department’s decision considered Ms Phan’s response to the NOICC. The Department noted some information before it contradicted Ms Phan’s claims:

“Information available on PRISMS indicates that [Ms Phan’s] enrolment in the English for Academic Purposes (ELICOS) course at Swinburne University was cancelled on 20 May 2014 as she withdrew from the course. Her last confirmed date of study was 19 May 2014. The remaining three (3) courses included in her original study plan (Foundation Studies; Diploma of Business; Bachelor of Business (Accounting)), were also cancelled on 20 May 2014 due to non-commencement of studies. I find this information to be in direct contradiction to [Ms Phan’s] claims that she progressed through courses with the confidence that she could easily pass the Diploma program.” [3]

[3] Tribunal file, folio 7.

34.The Department’s decision records that Ms Phan completed a Certificate IV in Business. The Tribunal does not have any evidence from Ms Phan in this regard.

35.In the absence of alternative evidence, the Tribunal accepts the PRISMS records cited by the Department as an accurate record of Ms Phan’s study history. As a result, the Tribunal places little weight toward the non-cancellation of Ms Phan’s student visa based on her claims about both her academic performance and demonstrated academic ability to date. The little weight the Tribunal is able to give in Ms Phan’s favour is because the Department has recorded that Ms Phan completed her Certificate IV course and another Vocational Education and Training (VET) course.

36.Ms Phan claims that her initial non-enrolment arose because of incorrect advice given to her by an education agent. Ms Phan asserts that when she became aware the advice was incorrect she took control of her education affairs and promptly rectified the breach.

37.The  Department’s decision letter did not accept Ms Phan’s explanation:

“… PRISMS indicates that the Confirmation of Enrolment (CoE) for the packaged courses at Holmes Institute was approved on 1 December 2014, and not 20 October 2014 as stated in [Ms Phan’s] NOICC response. On 1 December 2014, [Ms Phan] was also previously sent a NOICC in relation to her failure to comply with condition 8516 of her student visa. I find that [Ms Phan] was motivated to obtain a new COE only after the NOICC was issued on 1 December 2014, as such, I do not accept her claims that she obtained the new CoE in order to rectify the non-compliance of her own volition.” [4]

[4] Tribunal file, folio 6

38.The Tribunal accepts the information recorded in the Department’s decision letter and places moderate weight toward the cancellation of Ms Phan’s visa based on accepting the Department’s information over the claims made by Ms Phan in this regard.

39.Ms Phan’s explanation for the breach of her student visa from September 2015 until cancellation of her visa in October 2016 were specific personal issues she experienced from June 2015, as noted in the last five dot points of paragraph 31 above.

40.Ms Phan has not provided any evidence to support her claims in this regard. The Department in its decision letter noted that in the 38 months Ms Phan was in Australia prior to the cancellation of her student visa, she had completed approximately only 11 months of study and two Vocational Education and Training level courses.

41.Ms Phan’s response to the NOICC, particularly her recovery from her personal issues, is in very general terms only. It is not clear to the Tribunal from her response when Ms Phan felt she had recovered sufficiently to be able to recommence her studies. It is also not evident to the Tribunal what efforts Ms Phan made to recommence her studies or even when she made those efforts.

42.There is no evidence before the Tribunal of Ms Phan communicating with her education provider about her personal issues, or seeking a deferment of her studies.

43.There is no evidence before the Tribunal of Ms Phan seeking outside assistance to help with her personal issues, either through her education provider or through a medical doctor or similar.

44.In the absence of additional evidence to support Ms Phan’s specific claims, it is difficult for the Tribunal to place much weight on these issues in Ms Phan’s favour and against the cancellation of her student visa when the breach continued for over 13 months and the central purpose of Ms Phan’s visa was to stay in Australia temporarily to study. The Tribunal therefore gives these issues very little weight against cancellation when considering the discretion to cancel Ms Phan’s student visa.

Past and present conduct of the visa holder towards the department

45.The Department’s decision letter does not record any adverse issues against Ms Phan in relation to her conduct toward the Department. The Department file shows that Ms Phan responded promptly and with some detail in relation to the NOICC issued by the Department on 14 October 2016.

46.The Tribunal gives this consideration some, but not significant, weight in Ms Phan’s favour against the cancellation of her student visa.

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

47.This consideration was not relevant in this review.

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.

48.The Department’s decision letter acknowledged there are some potential legal consequences for Ms Phan arising from the breach of her student visa:

“… [Ms Phan] will become an unlawful non-citizen and may be liable for detention under Section 189 and removal under Section 198 of the Migration Act 1958 if she does not voluntarily depart Australia. However, [Ms Phan] will be eligible to apply for a bridging visa E which may allow her to remain lawfully in Australia so that she can finalise any outstanding matters.

… [Ms Phan] will be subject to Section 48 of the Act which means that she will have limited options to apply for further visas in Australia. Additionally, [Ms Phan] will be subject to Public Interest Criterion 4013 which means she may not be granted a temporary visa for three years from the date of this cancellation.” [5]

[5] Tribunal file, folio 7.

49.The Tribunal acknowledges that the possible cancellation of Ms Phan’s student visa will have specific legal consequences for her, including making Ms Phan an unlawful non-citizen and preventing her from being granted another temporary visa, at least without Ministerial intervention, until 28 October 2019.

50.There is no evidence before the Tribunal as to what Ms Phan will do, in terms of her departure from Australia, if her student visa is cancelled. The Tribunal gives the significant potential consequences of cancellation, some but only modest, weight in Ms Phan’s favour against the Tribunal exercising its discretion to cancel her visa as these consequences would have been known to Ms Phan in circumstances where she remained in breach for over 13 months.

Whether there would be consequential cancellations under s.140

51.This consideration was not relevant in this review.

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

52.This consideration was not relevant in this review.

Any other relevant matters

53.As Ms Phan did not accept the invitation to appear before the Tribunal to give evidence and did not provide any written submissions to the Tribunal, this consideration was not relevant in this review.

Conclusion

54.The Tribunal has considered all information on the Department’s file and the Tribunal’s file, including the NOICC dated 14 October 2016, Ms Phan’s response dated 20 October 2016 and the Department’s decision dated 27 October 2016.

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

DECISION

56.      The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Michael Ison
Senior 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.