Thai (Migration)

[2019] AATA 2643

Thai (Migration) [2019] AATA 2643 (26 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thanh Tuyen Thai

CASE NUMBER:  1701331

HOME AFFAIRS REFERENCE(S):           BCC2016/3707939

MEMBER:Brendan Darcy

DATE:26 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 April 2019 at 5:37pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course for more than twenty-eight months – not genuine student – wilfully breached visa conditions – family illness – emotional distress – lack of evidence – inconsistent evidence – credibility issues – no extenuating or exceptional circumstances – extent of non-compliance significant and severe – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140
Migration Regulations 1994 (Cth), r 2.43, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 January 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 that the applicant was not compliant with condition 8202 and that the grounds for the visa’s cancellation outweighed the grounds not to cancel 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 appeared before the Tribunal on 7 November 2018 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 representative attended the Tribunal hearing. However the applicant replaced her representative on 19 November 2018 in favour of another representative who had prepared and submitted a post hearing submission on 3 December 2018.

5. 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

6. 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?

7. 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).

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

9. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 17 March 2014 and the stay period of the visa was extended up to and including 31 December 2019.  It also indicates that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was enrolled in a registered course of study since 5 April; 2016.

10. The departmental file indicates that that the applicant was contacted by a departmental official by email prior to issuing the Notice of Intention to Consider Cancellation (NOICC) on 13 January 2017, inviting the applicant to provide reasons not cancel the student visa within a five-day timeframe.

11. The applicant provided a written response on 20 January 2017. The applicant’s written NOICC did not dispute that she changed coursework from an enrolled Bachelor’s degree in Health Science at Deakin University as well as a Diploma of Health Services at Melbourne Institute of Business Technology to a Certificate III in EAL and a Certificate II in Beauty Services at Baxter Institute. She further admitted that she was not enrolled in any coursework since 5 April 2014.

12. A delegate on the Minister’s behalf proceeded to cancel the student visa on 23 January 2017. On 25 January 2019, the applicant applied to have the delegate’s cancellation decision reviewed by the Tribunal with the decision record attached.

13. During the scheduled hearing on 7 November 2018, it was discussed with the applicant, she had not been enrolled in a Bachelor’s or Master’s degree since 27 August 2014 and that she was required to be continuously as such continuous enrolled was required by condition 8202.

14. In neither the applicant’s written or oral evidence, including in her representatives’ submissions provided to the Tribunal, does the applicant dispute that she was not compliant with condition 8202.

15. Based on the available evidence, the Tribunal has found that while the delegate was correct to find that the applicant was not compliant with condition 8202, he or she erred in finding the applicant had not been enrolled in a registered course of study between April 2016 and the date of cancellation – some ten months. 

16. The Tribunal finds that the applicant had not been enrolled in a registered course of study commensurate with her Subclass 573 visas between September 2014 and the date of cancellation – more than twenty-eight (28) months which is a substantial amount of time.  

17. Accordingly, on the evidence before the Tribunal, the applicant has not complied with condition 8202(2). 

18. As the applicant has failed to comply with the visa condition, the ground for cancellation of this student visa under review under s.116(1)(b) existed.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

19. 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’

20. Overall, the Tribunal finds that the applicant has approached this cancellation in a deceitful manner and these adverse credibility findings will be relevant to the Tribunal’s exercise of its discretion in this review of a student visa cancellation. 

    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.

21. According to the decision record, departmental records confirmed that the applicant was not meeting condition 8202 attached to her student visa as she was not enrolled in a registered Bachelor’s or Master’s course since 27 August 2014 and was not enrolled in any coursework at all from 5 April 2016. 

22. In her written response to the NOICC, the applicant outlined her circumstances as follows:

    When I finished EAL 1 course at Deakin, I realized that I really interested in Beauty jobs after I came to Nails Ships and Beauty Salons. Therefore, I decided to change my initial courses of Health Science at Death to Beauty courses at Baxter Institute.

    After I applied into Baxter Institute, I have achieved Certificate III in EAL and Certificate II in Beauty Services. At that time, I also got a part time job at Goddess of Nails and Beauty shop at level 3 Emporium Shopping Centre from November 2014 until l now. During that time, I really enjoy my job, and changing my studying course is the right decision.

    I intended to continue my studying by attend to Certificate IV on Beauty Therapy and Diploma of Beauty Therapy as well. However, after I meet my boyfriend, Richie Tran, everything has changed.

    We started our relationship on Valentine Day 2016. He said that he loved me so much and really wants to live with me forever.  He also promised that he will marry me and sponsor me so I can stay with him in Australia to build up our family. I was really happy and I completely trusted him. We started talked about our plan in the future. We will save money to buy our own house, and set up a Beauty Shop by myself. Therefore, I have not enrolled in any course since 5 April 2016.

    I hope you can consider my situation and give me a chance to build up a family with my boyfriend. (sic)

23. In this response the applicant seemed to arguing that because she wished to begin a romantic relationship, a family and a business as well as permanently reside in Australia while holding a temporary visa, she was entitled to breach condition 8202. In no way does the Tribunal accept this account to outline extenuating or exceptional circumstances beyond her control. Indeed this explanation strongly indicated to the Tribunal that she wilfully breached the condition of her visa. (At the hearing, the applicant claimed this relationship had since broken down)

24. During the hearing, the applicant provided some late claims as to the reasons she was not compliant with condition 8202. She claimed that she became depressed when she received news that her father had been in a vehicular accident and that her father had some serious problems with his lives. When asked about the timing of the accident, the applicant said it was before or soon after she arrived in Australia in early 2014. (The testimony was vague in this regard). The Tribunal noted that this emotional stated did not stop her from travelling and beginning her studies in Australia. Furthermore it was not mentioned in her NOICC response, further undermining its credibility as an explanation for her non-compliance.  

25. With regard to her father’s liver problems, the applicant claimed she was aware of the disease in early 2016 but did not have any medical evidence at the time of the hearing. Her father it was claimed passed away in March 2018. The applicant was unable to provide any satisfactory reason this was not mentioned in her NOICC response, expect to implausibly claim that the authorities in Vietnam withheld medical documents.  In her post hearing submission, it is argued that the applicant was informed by her mother that her father had been diagnosed with end-stage liver cancer sometime in 2017. Submitted to the Tribunal was medical evidence dated 6 July 2017 that her father had been suffering from “gastritis, insomnia, IBS and itching, an enlarged spleen and a cyst in the left kidney. A submitted death certificate indicates her father died on 16 March 2018 due to liver cancer.  Also submitted to the Tribunal is a statutory declaration by the applicant’s sister, Thi Thanh Thuy Thai, dated 19 November 2019. It states that the applicant stopped studying and left her educational provider at the beginning of 2016 due to the applicant’s extremely nervous and anxious emotional state based on learning about her father’s deteriorating health. The applicant also provided documentary and oral evidence that she attempted to depart Australia to be with her family in March 2018.

26. The Tribunal accepts that the applicant’s father had been in a traffic accident prior to or just after her departure from Vietnam to Australia in 2014, as claimed.  It further accepts that the applicant’s father was diagnosed with a serious liver disease which eventually led to his death, as supported by the submitted documentary evidence. It also accepts that her father’s death adversely impacted upon her and her family when she received the news and that she attempted to depart to Vietnam in March 2018 because of it.

27. However she has not provided evidence that the applicant’s father was diagnosed with this serious disease in 2016, as claimed. The applicant has only provided medical information from July 2017 - more than five months after the cancellation of her visa in January 2017. Had the applicant been genuinely afflicted, both psychologically and emotionally, by her father’s deteriorating health in 2016 as claimed, it would have been reasonable to expect her to have raised these concerns in her submitted response to the issued NOICC. Neither was any medical or other evidence provided to corroborate any adverse psychological conditions had been endured by the applicant while she was a student visa holder.   Conversely, the applicant submitted romantic, exuberant and cheerful reasons for her non-compliance with condition 8202 arising from the beginning of her new and permanent life in Australia with her then boyfriend in her written NOICC response. Based on these dramatic and irreconcilable discrepancies, the Tribunal does not accept the applicant received new from her mother in early 2016 about her father’s serious and untreatable diagnosis and it places no weight on her sister’s statement submitted.

28. Indeed the Tribunal finds these emotional and psychological claims as extenuating circumstances leading to her non-compliance not only contrived but also irrelevant.  The applicant’s non-compliance with condition 8202 occurred on 27 August 2014 – this is the date she was last enrolled in a registered Bachelor’s or Master’s degree commensurate with her Subclass 573 visa. As discussed in the hearing, none of the explanations provided by the applicant satisfactorily addressed this non-compliance.

29. It is more relevant to the Tribunal that the applicant had stated in the scheduled hearing that she did not believe her non-compliance with condition 8202 was a significant matter as she intended to continue her studies but not in a Bachelor’s degree. In this regard, she did not apply for another student subclass more suitable to vocational studies. Instead, she has advanced it was her judgement that her non-compliance to Australia’s migration laws was trivial and unimportant. Furthermore she provided a written statement that her visa should not be cancelled solely because she wanted to live permanently in Australia in a new relationship regardless of the conditions imposed on her. 

30. Based on the abovementioned adverse credibility findings regarding the applicant’s claims about her circumstances leading to the grounds for cancellation, the Tribunal has assessed that the applicant has shown no regard for the laws and regulations governing Australia’s migration program. Neither has the applicant failed to demonstrate that she experienced any extenuating circumstances beyond the applicant’s control that led to the grounds for the cancellation of her student visa; nor did she did anything meaningful to avoid or mitigate against her non-compliance with condition 8202 at all. Accordingly, the Tribunal gives the applicant’s accepted circumstances no weight towards the visa being either cancelled or not being cancelled.

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

31. In the applicant’s written responses to the NOICC, she stated she discontinued her enrolment in a Bachelor of Health Sciences in 2014 in favour of vocational coursework in beauty therapies. She further wrote at that she discontinued her studies in early 2016 as she wished to reside permanently in Australia with her then boyfriend and to establish a business in the beauty therapy business.

32. At the scheduled hearing, she claimed that she originally hoped to complete a degree in health services as she wanted to work in a pharmacy.  The Tribunal enquired that whether a degree in the health services sector offered many more well-paying opportunities to the applicant than beauty therapies sector. She provided some vague claim that she would rather do health services given her relationship had completed. At the end of the hearing, after a break with her representative, she then vaguely and inconsistently claimed she wished to undertake a Bachelor of Business to open an unspecified type of business. This changed testimony further invited credibility concerns about the applicant and her claims that she travelled to Australia for the purpose for which the visa was granted.

33. As part of her post hearing submission, the Tribunal notes that the applicant has also submitted two CoEs indicating that she has been enrolled in a Certificate III and Diploma in Beauty Therapy at Baxter Institute dated 22 November 2018. Given these enrolments occurred not only after the cancellation of her visa but after the scheduled hearing on 7 November and that there is no enrolment in any Bachelor’s degree, it places no weight on the applicant’s intention to remain in Australia to study on full time basis to complete higher educational coursework as required by a visa holder of a Subclass 573 visa. Indeed these CoEs compounded the applicant’s claims during the hearing that she wished to complete a degree in health sciences or in business.

34. The applicant also emphasised during the hearing that she completed a Certificate III in English language coursework and a Certificate II in Beauty Services as evidence to her commitment. She also mentioned completing a Diploma in Health Services which is not supported by the PRISMS document and provided no statement of attainments to support this claims in any of her submissions

35. Overall the Tribunal finds the applicant’s accepted academic progress underwhelming as evidence that she is committed to completing a full time degree. It also finds her vacillating written and oral reasons for continuing her studies to be inconsistent and vague. Furthermore, as outlined above, the applicant has not been credible and has not taken her responsibilities as a student visa holder seriously or conscientiously. Taking all this relevant information into cumulative consideration regarding about the applicant’s purpose to travel to and stay in Australia, the Tribunal gives these considerations significant weight in favour of the visa remaining cancelled and in assessing that the applicant has not been or will be a genuine full time student capable of upholding any of the conditions imposed on her.

    The extent of compliance with visa conditions

36. During the scheduled hearing, the applicant claimed that he has maintained his private health insurance. In her post hearing submission she provided some evidence that she maintain this insurance as a student visa holder. There is no strong evidence that the applicant has not been non-complaint with the other conditions imposed on her as a visa holder. It places some weight on this in favour of the applicant.

37. However the applicant has not been compliance with condition 8202 for more than 28 months and has not been enrolled for more 28 months. This is assessed by the Tribunal to be significant amount of time. Furthermore there is no evidence the applicant has sought any deferment or attempted to mitigate the non-compliance at all. Indeed the applicant was not enrolled in any coursework at all for about ten months and her written NOICC response illustrated to the Tribunal that did not intent to undertake further study but to live permanently in Australia. Even more despairingly, the applicant further claimed that that her non-compliance was not a significant matter.  The extent of non-compliance of condition 8202(2), in which the applicant was not enrolled in a Bachelor’s or Master’s degree for more than 28 months, is found to be significant and severe by the Tribunal. The Tribunal gives these adverse considerations significant weight towards the visa being cancelled.

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

38. The delegate’s decision stated that he or she was unaware of specific hardships arising from this cancellation given the applicant’s lack of response to the NOICC, although it accept some hardships would arise from the cancellation.

1. During the scheduled hearing, the applicant claimed that her family had invested considerable money in her academic progress and returning to Vietnam without a qualification will cause her problems with her mother as she will ask her not to study in Vietnam. She also mentioned that she was not aware that she ceased her health sciences coursework although she was aware of the visa cancellations. As discussed in the hearing, the degree of hardship arising from this testimony did not appear to be great. While the Tribunal accepts there will be some emotional and financial hardship arising from this cancellation remaining in place, it is not assessed by the Tribunal to be severe or significant or even notable in degree. Accordingly the Tribunal gives these hardship considerations little weight towards the visa not being cancelled.

   Past and present conduct of the visa holder towards the Department

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

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

3. 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

4. During the scheduled hearing, the Tribunal discussed the effect of section 48 of the Act if the cancellation of the applicant’s visa were to proceed. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia, arising from the operation of section 48 in limiting the applicant in applying for other visas and may have to depart or be detained. The applicant stated that she was unsure if she wanted to return to Australia after a three-year absence. The applicant said she did not think the breach was significant and reiterated that she wished to continue her studies.

5. Neither the applicant nor his representative at the scheduled hearing or in a written submission presented 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

6. As the applicant has no dependants, 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

7. No claim during the schedule hearing or in his post hearing submission was advanced that the applicant has any fears from the government or some other actor if she were to return to Vietnam. During the hearing she only expressed her fears arising from disappointing her family members. Noting the applicant has not applied for a protection visa, there is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

   Any other relevant considerations

8. The Tribunal has made a number of adverse credibility findings as outlined above. So deep and irreconcilable were some of the inconsistencies presented to the Tribunal that it has invited the Tribunal to assess that the applicant has approached this review application with strong assumption that decision makers are gullible and credulous. Based on these overall considerations, the Tribunal finds that the applicant had not been a reliable and consistent witness of truthfulness. By her own admission, she has demonstrated a deplorable degree of contempt towards Australia’s migration laws. 

9. Accordingly the Tribunal’s finds that the applicant’s evidence lacked overall consistency and credibility and it places significant weight on this in having the visa remain cancelled.

   Conclusion

10. 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.

11. Overall, the Tribunal finds that the applicant had not been a credible or consistent witness in the oral and written evidence she provided. She has failed to provide any credible extenuating circumstances beyond the applicant’s control that led to the cancellation of the visa or any degree of hardship to be faced if the visa remains cancelled. The Tribunal has also made findings that the applicant is not a genuine student who wishes to complete a Bachelor’s or a Master’s degree or has any intention of completing any coursework on a full time basis.

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

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

    DECISION

14. 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.