Phung (Migration)

[2019] AATA 837

Phung (Migration) [2019] AATA 837 (24 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Dan Ha Phung

CASE NUMBER:  1706151

HOME AFFAIRS REFERENCE(S):           BCC2016/2915615

MEMBER:Brendan Darcy

DATE:24 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 24 January 2019 at 12:18pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of remaining in Australia – extenuating circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 March 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis had not complied with condition 8202(2) and the grounds for the cancellation outweighed the grounds for not cancelling the 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 was invited to attend a scheduled hearing at 10.30 am at the Tribunal’s Melbourne offices for 23 January 2019. The Tribunal also sent two reminder SMS messages on 16 and 22 January 2019 respectively. However the Tribunal did not receive any response to this invitation right up to the day before the hearing.

4. On the day of the scheduled hearing, the applicant did not appear before the Tribunal at the scheduled time to give evidence and present arguments.  Neither did the Tribunal receive any requests for a postponement on medical or any other grounds, either from the applicant or on the applicant’s behalf. The Tribunal waited a further ten minutes before closing the hearing.

5. It waited a further twenty four hours for any late requests for another hearing on medical or other grounds. However it did not receive any requests for further submissions or any other requests regarding this review application, either from the applicant or on the applicant’s behalf, right up to the time of making this decision.

6. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to precede its decision-making on this review application without taking any further action to enable the applicant to appear before it.

7. 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

8. 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?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

11. The delegate’s decision submitted to the Tribunal indicates the applicant, a citizen of Vietnam, had been granted a Class TU Subclass 573 Higher Education Sector student visa on 13 November 2014 and the visa was due to expire on 30 August 2018.  It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was not enrolled in a registered course of study for the period between 16 November 2016 and 1 September 2016. 

12. The applicant was validly issued with a Notice of Intention to Consider Cancellation on 10 February 2018.

13. In the decision record, the Department received a response on 19 February 2017 and 22 February 2017/. The delegate described the response as neither agreeing nor disagreeing that the grounds for cancellations existed.

14. (However, it is the Tribunal’s reading of her ‘Explanation Letter’ that the applicant acknowledged her lack of enrolment and outlined the circumstances leading to the non-compliance of condition 8202(2).)

15. The delegate on behalf of the Minister proceeded to cancel the visa on 20 March 2017.

16. The applicant applied to have the delegate’s cancellation decision reviewed by the Tribunal.

17. However she did not provide any submissions or additional evidence regarding the grounds for cancelling this student visa under review.

18. PRISMS indicates that the applicant had been enrolled in a Certificate III and IV in EAL, a Diploma of Leadership and Management and a Bachelor of Commerce; that she completed the Certificate level coursework but not the diploma and the Bachelor of Commerce had been cancelled on 16 November 2015.  It appears the applicant re-enrolled in a Certificate III in Fitness soon after this but that she did not re-enrol in a degree again until 1 September 2016 for a Bachelor of Business. The enrolment for the Bachelor of Business appears to have been cancelled after the visa was cancelled.

19. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study for the period between 16 November 2016 and 1 September 2016. As the applicant was not enrolled continuously in a registered course, the applicant had not complied with condition 8202(2).

20. Therefore, the grounds for the cancellation under s.116(1) of the Act existed.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

21. 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. 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’

22. The Tribunal notes that the applicant did respond to the NOICC but that she did not provide any further written, documentary or oral evidence to the Tribunal. Accordingly, the Tribunal has relied on in exercising its discretion on the evidence provided to the Department in the context of the applicant’s lack of responsiveness in providing additional evidence it, despite being provided with a significant opportunity to do so since this review applicant had been lodged.

23. In considering this review application, the Tribunal has relied on the applicant’s NOICC responses from 19 February 2017 which included an ‘Explanation Letter’, medial documents for her mother and father, and prescriptions for her mother and father; and translated documents received by the Department on 22 February 2017, including a certificate of hospital transfer for her father, his TB treatment sheets, prescriptions and her father’s hospital discharge sheet.

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

24. According to the decision record, the delegate reached the view that the visa holder travelled to Australia to undertaken a course of study and receive a qualification but there is no evidence before the delegate to suggest that this was not the case. The delegate places some weight in favour of the applicant based on the applicant having undertaken a Certificate III in EAL and Certificate IV in EAL.

25. While the Tribunal finds it is concerning that the applicant did not complete any enrolled diploma any degree coursework. However the applicant did re-enrol in a Bachelor of Business and resume her studies, indicating to the Tribunal that the applicant’s original stated intention to advance her studies. The Tribunal places some weight of this evidence in favour of the applicant’s visa not being cancelled.

26. However, the Tribunal notes that the response to the NOICC (‘Explanation Letter’ dated 19 February 2017) the applicant does not mention any specific or even general purpose of her travel and stay to Australia. Nor did she provide any written or oral evidence to the Tribunal about the purpose of her travel and stay. Had the applicant been genuinely motivated to complete her studies for some particular purpose, it would have been reasonable for her to at least attend the scheduled hearing to present testimony about her academic and career goals.  Based on this lack of stated purpose and the applicant’s non-responsiveness and non-attendance at a scheduled hearing, the Tribunal finds that the applicant is not a genuine full-time student or who would uphold the conditions imposed on her if the visa was reinstated.

27. Accordingly the Tribunal gives these overall considerations significant weight in favour of the visa remaining cancelled.

    The extent of compliance with visa conditions

28. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions. The delegate decision does not record any information about further non-compliance. The applicant was not enrolled in a registered course for a substantial period of time for about ten months before re-enrolling. The Tribunal considers this significant to the question whether his visa should be reinstated. The applicant has provided some limited and vague explanations to the Department for her non-compliance, while she has not elaborated on or substantiated any of these explanations to the Tribunal for his non-compliance. Overall the Tribunal gives this factor only a little weight towards the visa not being cancelled.

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

29. The delegate’s decision accepted that there may be some financial and other hardships as a result of the cancellation. The Tribunal notes there is a lack of detail about the degree of hardship in her response to the NOICC is noted that the applicant has not provided any specific claims of hardship to the Department. Neither did the applicant provide any written or oral evidence to elaborate on these considerations. Whilst the Tribunal accepts that the applicant may suffer some negligible levels of hardship if the visa remains cancelled and despite the paucity of evidence, the Tribunal gives this factor a little weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

30. In her 19 February 2017 ‘Explanation Letter’, the applicant states that at the end of November 2015, her home town in Vietnam was hit with a hurricane that affected her family’s economy drastically. This brought many difficulties in continuing to pay for tuition in Australia. The letter added that the applicant’s father fell will with ‘AFB negative pneumonia’ and had to be hospitalised for six months. She added that her mother’s high blood pressure returned. The applicant explained that this exacerbated her family’s abilities to meet tuition payments, forcing the applicant to postpone her studies until September 2016 when ‘things got better and our economy restored, as so I had the chance to resume my studying again.’

31. According to the decision record, the delegate noted that the submitted medical evidence indicated that the applicant’s father had been discharged from hospital towards the end of the non-compliance period.  records confirmed that the applicant was not meeting condition 8202 attached to her student visa as he was not enrolled in a registered course and had not been attending classes right up to the decision to cancel the student visa. While the Tribunal accepts the applicant’s parents experienced a number of serious health problems, at the very least the timing of the events does not closely correspond with the applicant’s claims about her non-compliance.

32. With regards to a hurricane, tropical storm or typhoon impacting on the capacity of the applicant’s ability to meet tuition fee obligations, the Tribunal notes that there is no reports of such storms reaching Vietnam in November 2015 (Wikipedia records all the 2015 Pacifica typhoon - The Tribunal notes that publicly available media and other reports indicate that Tropical Storm Vamco in September 2015 did hit the Vietnamese coast causing damage through flooding in central Vietnam.  However, her parents address is recorded in the submitted medical evidence as Quang Yen in Quan Ninh province which is considerably further north than where this major weather event made landfall (more than 800 kilometres). This publicly available information has invited considerable credibility concerns about the applicant’s claims leading to her non-compliance of condition 8202.

33. The Tribunal also notes there is no evidence that the applicant sought to have her studies deferred or suspended due to compelling and/or compassionate reasons.

34. Had the applicant attended the hearing, it would have asked the applicant to explain these apparent discrepancies and to the extent she was unable to afford tuition fees as she claimed, or whether other financial means were available to her to address her challenges. However she did not attend. Nor did the applicant provide the Tribunal with any submissions or additional information.

35. While the Tribunal accepts the applicant’s parents did experience medical complications, it finds that that the applicant has presented at least one significant contrivance to explain her non-compliance, namely her family finances were affected by a tropical storm or hurricane. In the context of this adverse credibility finding, the applicant’s otherwise vague and limited reasons for her non-compliance and her lack of responsiveness toward the Tribunal’s opportunities to represent further written and evidence documentary and oral evidence at a scheduled hearing, the Tribunal gives only a small amount of weight with regards to the applicant having experienced financial and mental stress arising from familial circumstances.  However it does not accept that those circumstances were extenuating or beyond her control given she was in a position to seek a deferral or suspension of studies or make alternative arrangement to meet her tuition fee obligations.

    Past and present conduct of the visa holder towards the Department

36. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal gives this a little weight in her favour.

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

37. Not relevant.

    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

38. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart. If she remains unlawful, she applicant risks being detained and forcibly removed. The applicant may also incur a penalty that prevents the former student visa holder being able to meet Public Interest Criteria 4013 and, therefore, may not be able to be granted a further temporary visa for a period of three years. However, the applicant has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

39. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

40. There is no evidence in which this case would engage Australia’s international obligations before either the Department or the Tribunal. It gives this factor no weight.

    Any other relevant considerations

41. There are no further considerations in this review application other than the applicant’s lack of responsiveness to the opportunities to present further evidence and advance further arguments as to the reasons this visa should not remain cancelled. Had the applicant genuinely been concerned about the cancellation of her visa, it would be reasonable to expect the applicant to attend the hearing or to have provided written or documentary submissions. However she did not. The Tribunal places considerable weight on this lack of responsiveness in favour of the visa in not being reinstated.

    Consideration of the discretion to cancel the visa

42. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

43. 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).

44. In considering all the available evidence provided in this decision, the Tribunal has placed more weight on those factors in favour of the visa remaining cancelled over those countervailing factors in favour of not being cancelling the visa.

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

    DECISION

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

    Brendan Darcy
    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.