TANG (Migration)

[2021] AATA 4712

TANG (Migration) [2021] AATA 4712 (8 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Quoc Vinh Tang
Mrs Thi Tu Trinh Phan

CASE NUMBER:  2003320

HOME AFFAIRS REFERENCE(S):          BCC2019/5230519

MEMBER:Brendan Darcy

DATE:8 November 2021

PLACE:Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 8 November 2021 at 11:05am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with visa condition – not enrolled in registered course – discretion to cancel visa – no substantive response to department’s notice – visa, residence, study and work history – lack of academic progress – enrolment at lower level in different subject area – length of time not enrolled – no approach to education provider – exaggeration and embellishment – hardship if visa cancelled – member of family unit – decision under review affirmed for first applicant, no jurisdiction for second applicant

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 February 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that s 116(1)(b) had been breached on the basis of non-compliance with one of the visa conditions imposed on the applicant’s 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. For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. Via an internet-enabled audio-visual platform, the applicants appeared before the Tribunal on 25 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. 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 (Cth). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

   Background

8. The first applicant was born on 14 September 1984 in Vietnam.

9. The first applicant first arrived in Australia on 24 January 2009 while holding a Class TU Subclass 580 Student Guardian visa. On 18 January 2012, the first applicant returned to Australia holding a Class TU Subclass 573 Student visa for higher education. That visa ceased on 15 March 2016.

10. The first applicant was granted a Bridging visa A on 11 March 2016 until a further Class TU Subclass 573 Student visa for higher education was granted to the first named applicant on 28 April 2016. This was set to expire on 30 September 2021. It is this student visa that has been cancelled and is being reviewed in this decision. (The Tribunal notes that the first applicant last departed 6 February 2018 and returned on 20 February 2018.)

11. The second applicant was granted a Class TU Subclass 573 Student visa on 28 April 2016.

12. The applicant’s student visa had a number of conditions attached to it, including 8202(2)(a): the visa holder is to be enrolled in a registered course.

13. At the time of the granting of the visa, a student visa was also issued to his spouse, who had first arrived in Australia in 2012 as a dependent student visa holder. Both visa holders were citizens of Vietnam.

    Did the applicant comply with condition 8202?

14. 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 full-time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

15. In the present case, the applicant’s visa was cancelled on the basis the first applicant was not enrolled in a full-time registered course.

16. The Department issued a written Notice of Intention to Consider Cancellation (NOICC) to the first applicant on 15 January 2020. The letter indicated that the first applicant’s visa may be cancelled, subject to comment, on the basis of the first applicant breaching s 116(1)(b) of the Act and was invited to provide written comment to the Department within five working days after the first applicant is taken to have received the NOICC.

17. The first applicant emailed the Department on 22 January 2020 requesting an extension to prepare documents to support a written statement. The Department granted the extension and indicated in an email dated 23 January 2020, that the first applicant’s response was due on 11 February 2020.

18. However, right up to the time of making the decision not to grant the visa on 13 February 2020, the Department did not receive any documents or submissions, either from the applicants or by anyone on their behalves, despite an extension of time to respond being granted.

19. The applicants applied to have the delegate’s cancellation decision reviewed by the Tribunal on 20 February 2020, with the delegate’s decision record attached.

20. According to the decision record, the first applicant completed an Advanced Diploma of Hospitality Management but failed to maintain his enrolment in a registered course since 1 January 2019 according the Provider Registration and International Student Management System (PRISMS).

21. The Tribunal received a response to the hearing invitation and the following items on 20 October 2021 attached to the email as a pre-hearing submission:

    ·The first applicant’s Certificate III in Commercial Cookery at Le Cordon Bleu (LCB) issued on 13 December 2017;

    • The first applicant’s Certificate IV in Commercial Cookery at LCB issued on 3 July 2019;

    ·The first applicant’s Advanced Diploma in Commercial Cookery at LCB issued on 3 July 2019;

    ·An invoice to the second applicant from the South Australian Women’s & Children’s Hospital indicating that she owed $475.00 for an emergency referral. It is dated 16 July 2018;

    ·An invoice to the second applicant from a radiologist indicating she owed $191.00 for obstetrics. It is dated 21 May 2018;

    ·Receipt to LCB catering school indicating the education provider received 1950 Australian dollars from the first application. It is dated 29 January 2019;

    ·An email to the first applicant indicating that the applicant’s education provider for an Advanced Diploma of Hospitality Management (Commercial Cookery) was about to report the first applicant for unsatisfactory attendance to the Department of Education. The email is dated 11 February 2019.

22. Also attached to these submissions was a written submission by the applicant’s legal representative. Regarding the grounds for cancellation, the submission reads that there appears to be grounds for cancelling the first applicant’s visa because it appears he had not complied with a condition of the visa.

23. At the scheduled hearing, the first applicant accepted that he had not been enrolled in a Bachelor’s degree for a period of time. However, he disputed that he was not enrolled in the early half of 2019.  The grounds for this dispute were based on him continuing to complete units of his Advanced Diploma.

24. At the end of the hearing, the Tribunal provided the first applicant with an opportunity to lodge further documents to support his overall claims, and to do so by 1 November 2021. The Tribunal requested that the first applicant provide additional evidence such as Confirmation of Enrolments (CoEs), academic records to indicate his participation in an Advanced Diploma in mid-2019 and any other medical records pertaining to his father.

25. On the same day as the scheduled hearing (but after its conclusion), the applicants submitted the following documents (that had not already been submitted):

    ·A copy in Vietnamese with an accompanying translation into English of a Saigon based doctor’s prescription pertaining to the first applicant’s father dated 30 August 2019. The document indicated the applicant’s father was prescribed antibiotics and other medication for Helicobacter pylori (H. pylori) gastritis (stomach inflammation) and was advised to avoid smoking, alcohol and some foods;

    ·A translation of a medical test indicating that the applicant’s father was diagnosed with H. pylori gastritis at a clinic in Saigon. It is dated 30 August 2019;

    ·Receipts from LCB indicating that the applicants paid 12,450 and 325 Australian dollars, dated 23 January 2018 and 13 March 2018 respectively;

    ·A receipt from LCB indicating the applicants paid 1950 Australian dollars on 29 January 2019.

26. On 1 November 2021, the Tribunal received copies of the first applicant’s academic transcript for an Advanced Diploma at LCB indicating that he was conferred with the Diploma on 3 July 2019.

27. No further submissions were received, including the requested CoEs.

28. Noting that the applicant has some dispute with timing and the degree to which he was not registered in a course for higher education, the Tribunal examined the PRISMS document on the Departmental file. It indicates that the first applicant was not registered in a Bachelor’s degree as required by a Subclass 573 for higher education from 31 July 2019. That is, the delegate erred in saying the first applicant was not enrolled for a 12-month period.

29. Nonetheless, it is the Tribunal’s assessment that the first applicant was not enrolled for six months in a registered course which is required by condition 8202(2)(a).

30. On the evidence before the Tribunal, the first applicant was enrolled in a full-time registered course. Accordingly, the first applicant has not complied with condition 8202(2)(a).

    Findings regarding the other applicant

31. When the first named applicant applied for the delegate’s cancellation decision to be reviewed by the Tribunal on 20 February 2020, the particulars of the second named applicant, Thi Tu Trinh Phan, who was born on 18 July 1983, were attached.

32. As discussed below, the second named applicant had been granted a secondary student visa when the first named applicant was granted a student visa on the basis of being the spouse of the second named applicant.

33. When the first named applicant’s visa was cancelled, the second named applicant’s visa was consequentially cancelled under s 140 of the Act.

34. The second named applicant does not have review rights in relation to this review because the cancellation was automatic and because there was no decision with written reasons for that cancellation decision. Should the first applicant’s visa be reinstated, it is anticipated that the second applicant’s visa will be automatically reinstated.

35. The Tribunal accordingly has no jurisdiction with respect to the second named applicant.

    Consideration of the discretion to cancel the visa

36. Having found that the first 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 Procedural Instruction ‘General visa cancellation powers’.

    The 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

37. The Tribunal has considered the first applicant’s purpose for travelling to and reasons for remaining in Australia in the context of the applicant’s overall visa history and his academic progress. In this regard, it is significant to note that the first applicant had arrived in Australia as a person who had a Bachelor’s degree in accounting from a Vietnamese institution for higher learning and that he had practised in the accounting profession while in Vietnam.

38. As discussed in the hearing, the first applicant initially travelled to Australia on a Subclass 580 visa as a guardian of his brother in 2009. In holding this visa, the first applicant acknowledged that he was physically separated from his wife and his son residing in Vietnam and that he has work rights as a holder of a 580 visa.  He then applied for a student visa for higher education which was granted on January 2012, without his wife or son being attached as dependents.

39. As discussed in the hearing, the first applicant had enrolled in foundational English coursework, a Diploma in Business, a Bachelor degree in Commerce and a Master’s degree in Accounting while holding his first student visa.  The first applicant had completed the English language coursework and began studies in diploma-level coursework.

40. When the first applicant was asked about the reasons regarding his challenges with his Australian coursework in business studies, the first applicant said he was unfamiliar with Australia. The Tribunal pointed out to the first applicant he had been in Australia since 2009 with ample opportunity to familiarise himself with Australia. The first applicant elaborated that he meant the accounting principles were different and more challenging in Australia than Vietnam and that he struggled with the coursework being taught in English. When the Tribunal questioned whether he would have trouble with the complex ideas at the very beginning of the diploma-level coursework, the first applicant said that some time had passed since he studied. The Tribunal pointed out that the first applicant had also been practising as an accountant. The first applicant then admitted that he did not forget his studies. Given the first applicant completed foundational English language coursework, had been in Australia since 2009 and had already held a degree in accounting, the Tribunal does not accept the first applicant struggled with the complexity or unfamiliarity of diploma-level accounting or business studies in an Australian education institution. Arising from this oral evidence, the Tribunal notes a willingness to unconvincingly exaggerate the first applicant’s claimed circumstances in order to convince the Tribunal that the purpose of his travel to Australia was to remain temporarily as a full-time student.

41. The Tribunal enquired into the reasons the first applicant chose to enrol with LCB to obtain qualifications in hospitality which was the purpose of his holding this student visa currently under review.  The first applicant explained that with the hospitality coursework experience it would be easier for him to find work in Vietnam. The first applicant said he had only practised accounting with his family’s retail business. He also said that he worked in a restaurant called Inland Sea Restaurant in regional South Australia to gain experience. The Tribunal enquired into why he would undertake such coursework which was so unrelated to what he had done previously, to which the first applicant said it would be better to do hospitality coursework.

42. The first applicant claimed that he enrolled in Australian education institutes to develop himself beyond his Vietnamese degree and existing prospects in Vietnam. He said he wanted to work in an international company in Vietnam and that it would be better if he had a degree from Australia because it had international cachet. When the Tribunal enquired into how substituting a Master’s in accounting in Australia for a degree in hospitality would advance a career in an international company, the first applicant said such a degree will lead to him working in hospitality management in an international hotel chain or large corporation. The first applicant said that the coursework in Australia is better as it opens him up to other experiences from people with different backgrounds.  

43. The Tribunal also notes that the first applicant had ample opportunity to enrol in a Bachelor of Hospitality Management but did not do so, even after finishing his diploma-level studies at LCB. This further indicated that the first applicant was not as committed and as conscientious in completing his studies in order to return to Vietnam, especially in the context of the finding below about the applicant’s extenuating circumstances not being significant or severe to prevent or limit his non-compliance with condition 8202.

44. Lastly, the applicant’s overall visa history since 2009 indicates that the first applicant has tried to remain in Australia for as long as possible, even though it meant enduring long physical separations from his wife and his son.

45. The evidence is that the first applicant’s coursework had somewhat advanced while he was enrolled in hospitality coursework compared to business or accountancy related studies.  However, there is an overall lack of academic progress while the first applicant held a Subclass 573 visa for higher education. Indeed, he never began any bachelor or above level of coursework. Neither did the first applicant provide any convincing or credible reasons for that lack of progress. The first applicant has failed to persuade the Tribunal about the reasons enrolling in unrelated hospitality coursework would be more advantageous than completing a Bachelor in Commerce or a Masters in Accounting given his established professional background. Taken as a whole, the evidence has invited the Tribunal to assess that the first applicant is not a genuine temporary resident whose purpose is to remain temporarily in Australia in order to better advance his prospects through higher learning. The Tribunal does not accept that he has a credible or urgent or compelling need to travel to or remain in Australia as a student visa holder. Given these findings, the Tribunal places considerable weight on these considerations in not having the visa reinstated.

    The extent of compliance with visa conditions

46. The first applicant has not maintained enrolment for over six months. The first applicant had opportunities to re-enrol in a Bachelor’s degree over a six-month period. These facts are, in themselves, somewhat serious matters of concern. After all, being enrolled on a full-time basis is the purpose of this visa being granted. For this reason, the Tribunal places some weight on this non-compliance in having the visa remain cancelled.

47. Nonetheless, no information is before this decision maker to suggest he has been non-compliant with any other condition that his student visa was subject to, or that it had been breached. Accordingly, the Tribunal affords this consideration some weight in favour of not cancelling the visa.

    The degree of hardship that may be caused to the visa holder and any family members

1. The Tribunal notes that the delegate was not aware of any specific information relevant to this factor for consideration. This is because the first applicant did not provide a written response to the NOICC, despite having the opportunity to do so.

2. However, in this review, the applicants submitted provided written and oral reasons and have elaborated on them during the scheduled hearing.

3. Principally, the first applicant has argued that he will face hardship as his goal to work in the hospitality industry would be adversely affected. The written submission mentions he is also affected by relative age. The first applicant also said his capacity to gain employment is greatly enhanced in completing coursework in Australia. 

4. The Tribunal accepts that the first applicant’s employment prospects would be enhanced in completing coursework in Australia for the reasons claimed. However, it is also mindful that the first applicant already has a degree and has been employed, albeit in a family business in Vietnam, as an accountant. The first applicant mentioned that he wanted very much to progress from working for his family as an accountant to working in the international hospitality sector. In the context of the Tribunal’s findings about the first applicant abandoning a Master’s in Accounting in favour of a degree in hospitality, the Tribunal does not accept that the first applicant genuinely wanted to work in the hospitality sector. Furthermore, there is an opportunity for the first applicant to continue studies in Vietnam and/or return to work as a qualified accountant. The Tribunal found these specific arguments put by the applicants about financial hardship to be unconvincing and not amounting to any notable, significant or severe degrees of hardship. Accordingly, the Tribunal places little weight on the financial hardship arising from this visa remaining cancelled.

5. With regard to emotional and psychological hardship, the Tribunal discussed with the first applicant that he and his wife will be returning to Vietnam where he will be reunited with their son and their extended family members. The last time the second applicant saw their son was in early 2019. During the hearing, both the applicants admitted they would be emotionally better off in returning to Vietnam while insisting that they would be financially better off if the first applicant completed his studies and that they would find it difficult – but not impossible, to break away from their family without an Australian qualification. The Tribunal accepts the applicants are strongly motivated to ‘break from their family’, however, this does not amount to significant or even notable hardship.

6. No evidence about either of the applicant’s psychological conditions from a medical professional or psychologist was submitted as part of this review.

7. When cumulatively considering the evidence regarding financial, emotional, psychological hardship arising from this visa remaining cancelled, the Tribunal accordingly places a small amount of weight on these considerations in favour of the visa being reinstated.

   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

8. The guidelines indicate that 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.

9. In this review, the first applicant advanced a number of claimed extenuating reasons he had been enrolled in a registered course as required by condition 8202.  

10. The applicant had advanced that his wife experienced a miscarriage in 2018 which involved an emergency intervention. The applicants provided medical evidence to support the credibility of this unfortunate event having occurred. The event was described as distressing. The Tribunal accepts the medical evidence is credible and that it was beyond their control. It also accepts the event to be reasonably characterised as emotionally distressing for the applicants. While the Tribunal does have sympathy for the applicants, the miscarriage however occurred 12 months before the non-compliance occurred. The Tribunal notes that the first applicant completed his Advanced Diploma over the first half of 2019. This strongly indicates that the miscarriage did not significantly impact his diploma-level coursework. Overall, this otherwise accepted circumstance is not relevant as an extenuating circumstance as it did not adequately explain the reasons the first applicant’s non-enrolment in a Bachelor’s degree for six months prior to the cancellation.  

11. At the hearing, the first applicant also advanced that he was not enrolled in a registered course for full-time study because his father has been ill and there was a fear his digestive problems reflected the likelihood that his father had a cancer. This news, the first applicant claimed, was discovered between May 2019 and August 2019. The August 2019 medical evidence submitted to the Tribunal indicates the first applicant’s father’s ailment was diagnosed as a stomach inflammation and that the ailment was treatable. While it is accepted that the applicants were concerned about this for a limited period of time over a few months, the news did not affect the completion of his diploma-level coursework. While the Tribunal accepts it had some impact on him, it did not adequately explain the reason the first applicant remained non-compliant with condition 8202 over a six-month period.

12. The first applicant also advanced in his written and oral evidence that there was a miscommunication between the college and himself or his agent about not being enrolled. In this regard, the applicants provided evidence of an email – dated 11 February 2021, between his education provider, LCB, and his agent. As discussed in the hearing, the first applicant also received the email. It states that the records for LCB indicate that the first applicant failed to attend classes for the Advanced Diploma and the education provider was required to report this unsatisfactory attendance to the Department and that the first applicant was invited to re-enrol.

13. The Tribunal queried that if the first applicant and his agent had received an email about inadequate attendance in an Advanced Diploma then it would be likely they received an email about his cancelled enrolment in a Bachelor’s degree. The first applicant claimed that he had not. The Tribunal enquired whether the first applicant was withholding any of these emails. The first applicant insisted he had not been withholding information and that he was unaware of his agent receiving any further emails. Given there is a financial incentive on the part of the education provider to keep fee-paying international students enrolled, the Tribunal does not accept the first applicant did not receive any further correspondence, either directly or indirectly, about his lack of enrolment in coursework. It is also peculiar that the first applicant who was enrolled for full-time studies did not approach the education provider about the commencement of these studies over that six-month period. The Tribunal acknowledged the first applicant provided some vague answer about forgetting to remain engaged. None of these explanations in the context of the available evidence provided the Tribunal with any convincing reasons that his non-compliance was due to extenuating circumstances.

14. Taken as a whole, the Tribunal found no extenuating circumstances beyond the first applicant’s control that led to the grounds for cancellation existing. The Tribunal therefore places considerable weight on the lack of extenuating circumstances that the applicant’s student visa under review should remain cancelled.

    Past and present behaviour of the visa holder towards the Department

15. There is no evidence before the Tribunal that either of the applicants in this matter have been uncooperative with the Department or the Tribunal. Given this is a reasonable expectation of every visa holder, the Tribunal accordingly places only a little weight on this factor in favour of the visa not remaining cancelled.  However, as discussed in the hearing, the applicants were provided with an extension of time to respond to the NOICC but did not submit one. The applicants claimed at the hearing that their representative had done so on their behalves. The representative was not at the hearing and the applicants had an opportunity to further address this in a post hearing submission. Yet, the Tribunal has received no further information about the applicants’ non-responsiveness to the NOICC. Given the absence of any further evidence or arguments, the Tribunal does not accept the applicants’ representative forgot or overlooked to submit documents as part of the applicants’ response to the NOICC. The Tribunal places some weight for this lack of responsiveness to the Department, not as uncooperative behaviour, but indicating a general lack of diligence and conscientiousness in dealing with the Department.

    Whether there would be consequential cancellations under s 140

16. The Tribunal accepts that the first applicant’s student visa had the second applicant, who is the spouse of this visa, attached to it as a secondary or subsequent visa holder. Her visa was consequentially cancelled under s 140 of the Act.

17. It is accepted the second applicant will be adversely impacted on this visa remaining cancelled, in the sense that her visa options will be limited and that she may be prevented from being granted particular temporary visas for as much as three years. The second applicant said it would be very disappointing, even terrible for her family, if she had to return to Vietnam because her plans to support her husband in Australia as a student visa holder had failed and that it was very disruptive to her and her husband’s plans for his family. The Tribunal pointed out to the second applicant that, if the visa remained cancelled, she could be reunited with her son whom she has not seen for some time and who is a minor. The second applicant had not returned to Vietnam since 2019. The second applicant accepted that but insisted the consequences on her family were severe.

18. Noting the findings above about the hardship to be expected if the first applicant’s visa remains cancelled, the Tribunal does not accept the hardship to the second applicant will be financially or emotionally or psychologically severe or considerable. The Tribunal accepts that if the visa remains cancelled there will be some financial impacts on her and her family but these adverse impacts are not significant or considerable in the context that she will be returning to live with her son in a country with whom she is very familiar.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

19. If the first applicant became an unlawful non-citizen, he risks detention under s 189 and his forcible removal under s198 of the Act if he does not voluntarily depart Australia. He would also be affected by s 48 of the Act, which would cause him to have limited options if applying for further visas while in Australia, and public interest criterion 4013, which may prevent him from being granted particular temporary visas for a specific period. The Tribunal places some weight but not a considerable amount on this factor against the visa remaining cancelled.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

20. At no stage did either of the applicants advance any international obligations, including non-refoulement obligations, being triggered if they were to return to their country of origin and reference. Given their child was residing safely in Vietnam with his grandparents, the Convention of the Rights of the Child was not applicable in this matter.

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

21. This factor is not relevant.

    Any other relevant matters

22. It is noted that the first applicant is currently working on his English skills to improve his employability in the international hospitality sector in Vietnam, as well as reading cookbooks to improve his professionalism. The Tribunal places a small amount of weight on this in having the first applicant’s visa not cancelled.

23. While the Tribunal does not find the applicants contrived their claims and circumstances, the Tribunal found a strong thread of exaggeration and embellishment in their claims about the purpose of them remaining in Australia, the hardship to be faced if this visa were to be cancelled and a lack of sufficient extenuating circumstances in which they could have afforded such a notable period of non-compliance with condition 8202. The Tribunal found these embellishments were presented because of the strong desire of the applicants to remain in Australia on a permanent basis.  For these reasons, cumulatively considered, it places some weight on presenting these embellishments in favour of the visa remaining cancelled.

    Summary

24. Overall, the first named applicant did not advance any persuasive and compelling reasons to the Tribunal that he was a genuine student who wanted to remain in Australia temporarily. The Tribunal did not accept that the first applicant who holds a degree in accountancy and has practised as an accountant in Vietnam struggled to understand diploma-level concepts of accountancy and business studies in Australia because they were substantially different to his higher learning in Vietnam or that he was unfamiliar with English as a language or the Australian teaching environment. It is does not accept the first applicant shifted his learning towards hospitality because he had any genuine or urgent plan for his family that involved working in the international hospitality sector with his country of origin.

25. The first applicant failed to demonstrate to the Tribunal that he and his wife, who are physically separated from their only son in Vietnam would experience notable, severe or considerable financial, emotional or psychological hardship, should this visa remain cancelled. The Tribunal was unable to identify any extenuating circumstances to adequately explain the first applicant’s non-compliance with condition 8202 or the reasons he was not able to re-enrol within the six-month period in registered coursework.

26. The Tribunal found a strong thread of exaggeration and embellishment as to the reasons the first named applicant’s visa should be reinstated.  

27. In this decision, a range of unfavourable factors, cumulatively considered, is found to have outweighed those countervailing favourable factors towards not cancelling the applicant’s student visa.

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

29. As mentioned above, the Tribunal has no jurisdiction with respect to the second applicant.

    DECISION

30. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.

    Brendan Darcy
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.