Thai (Migration)

[2018] AATA 3323

Thai (Migration) [2018] AATA 3323 (13 June 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Xuan Dieu Thai

CASE NUMBER:  1712153

DIBP REFERENCE(S):  BCC2017/1180759

MEMBER:  Tigiilagi Eteuati

DATE AND TIME OF

ORAL DECISION AND REASONS:          13 June 2018 at 3:05 pm (QLD time)

DATE OF WRITTEN RECORD:               20 June 2018

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision under review.

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Applicant not enrolled in a registered course – Whether the visa should be cancelled – Multiple courses enrolled in and subsequently cancelled – Limited academic progression – Significant time spent in Australia not studying – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 June 2017 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

1. At the hearing on 13 June 2016 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision dated 1 June 2017 made by the delegate of the Minister for Immigration to cancel the applicants subclass 573 visa under section 116(1)(b) of the Migration Act. The delegate cancelled the visa on the basis that the applicant breached the condition of his visa to remain enrolled in a registered course. The issue in the present case is whether that ground of cancelation is made out and if so, whether the visa should be cancelled.

1. The applicant appeared before the Tribunal by video link from Sydney on 13 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant has breached Condition 8202 of Schedule 8 to the Migration Regulations. If the applicant has breached that condition, the visa may be cancelled.

Did the applicant comply with Condition 8202?

1. Condition 8202 as it applies in this case requires a student to be enrolled in a registered course.

1. The delegate found that the applicant had not been enrolled in a registered course since 8 September 2016. This was admitted by the applicant and the Tribunal accepts this.

1. On the evidence before the Tribunal the applicant was not enrolled in a registered course. Accordingly the applicant has not complied with condition 8202. Therefore, the ground for cancellation under 116(1)(b) of the Migration Act is enlivened.

Consideration of the discretion to cancel the visa

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

1. 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 the 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. The Tribunal has considered all of the material provided by the applicant and his representative.

1. At the hearing before the Tribunal, the applicant claimed that when he arrived in Australia in September 2013, he was enrolled in an English language course to be followed by a

   Certificate IV in Business, then a Diploma of Management and finally a Bachelor of Business degree. The applicant indicated that he completed the English language course in March

2014. The applicant said that he did not commence any of the other courses and his enrolment in these courses was subsequently cancelled.

1. The applicant said that he was not enrolled in any course from March 2014 until July 2015 when he enrolled in a commercial cookery course. He said that he had not been enrolled in a course in this period because he had no interest in studying, that he was spending time with his friends and drinking. He said that he enrolled in a cookery course because his friends had told him that it would be an easy course to complete. The applicant said that he attended the commercial cookery course for about a year until mid-2016.

1. He said that his enrolment in that course was cancelled because he had not paid the fees for the course. The applicant said that there were troubles with his parents’ business in Vietnam in 2016 which meant that they could not continue to provide him money with which to pay his fees. In addition, the applicant said that his grandfather had passed away in 2016 which caused him stress and affected his ability to study.

1. The applicant gave a third reason as to why he failed to be enrolled in a course

   from September 2016. That is, he claimed that in 2016, while he was walking along the street, someone unknown to him put pressure on him to sell marijuana for him. The applicant said that he refused this request but that he was pressured further to sell the drugs. At first the applicant said that after this incident he did not attend his course anymore because he was afraid of running into the drug dealer. Later he appeared to change his evidence and say that on a few occasions when he was making his way to his course, the drug dealer stopped him and put pressure on him to sell drugs.

1. The Tribunal asked the applicant why he did not attempt to enrol in another course after 2016. The applicant said that he had been silly, that he was concerned with amusing himself and had spent time drinking.

1. The Tribunal asked the applicant whether he or anyone in his family close to him would suffer hardship if his visa remained cancelled and he returned to Vietnam. The applicant said that the education system in Vietnam was poor and he would have fewer opportunities for employment if he was unable to complete courses in Australia.

1. The Tribunal raised with the applicant its concern that it appeared from his attendance records that he had enrolled in some 23 courses and that he had only completed a single English course. The applicant admitted that apart from the English course, the only other course which he undertook was the commercial cookery course. He said that he was unaware that he had enrolled in so many courses.

1. The Tribunal raised with the applicant its concern that because the applicant had dropped out of the courses he had originally been enrolled in, apart from English, because his enrolment in most of the 23 courses he was enrolled in was cancelled, either because the applicant failed to commence the course or because he had not paid the fees, and because the applicant had told the Tribunal that he had previously been uninterested in studying and that he had spent his time amusing himself and drinking with his friends, that the applicant may not be a genuine student and may not have the will or desire to successfully undertake a higher education course in Australia.

1. The applicant agreed with the Tribunal’s characterisation of its concerns and said that he did not deny any of the matters raised by the Tribunal. The applicant instead said that he pleaded for understanding and requested a chance for him to remain in Australia so that he could complete a course in Australia. The applicant said that, if he were allowed to remain in Australia, he would enrol in a building course because he thought that that would benefit him and his family on return to Vietnam.

1. The Tribunal raised with the applicant its concern that because the applicant had only passed an English course since he commenced studies in 2014 and because of his limited mastery of English as demonstrated during the hearing, that the applicant may not have the ability to successfully undertake a higher education course in Australia. The applicant indicated that, if he were given the opportunity to remain in Australia, he would undertake a further English course before commencing his building course.

1. The Tribunal finds that, because the applicant abandoned all of his substantive courses, that he had only been able to complete one English course since he began studying in 2014 and because he had told the Tribunal that previously he was not interested in studying and instead was interested in amusing himself, the applicant is not, and has not been, a genuine student and does not have the will or desire to successfully undertake a higher education course in Australia.

1. The Tribunal also finds that because the applicant has only been able to complete a single English course since he began studying in 2014 and his limited ability with the English language as evidenced during the Tribunal hearing, that the applicant does not have the ability to successfully undertake a higher education course in Australia.

1. The Tribunal is willing to accept that the applicant, his girlfriend and his family members may experience some disappointment and shame if the applicant’s visa was cancelled before he was able to complete a higher education course in Australia. The Tribunal has also considered, although it was not raised by the applicant, that the applicant has been in a relationship with his girlfriend for some four years and that the cancellation of the applicant’s visa may result in the applicant returning to Vietnam and the separation of the applicant from his girlfriend.

1. The Tribunal has also considered that, as the applicant’s visa has been cancelled for breach of condition 8202, he may have to wait for some time to be granted another visa in Australia. The Tribunal has also considered the applicant’s view that the education he would receive in Australia would be superior to that that he would receive in Vietnam. The Tribunal has also considered the applicant’s view that, if he were not able to complete courses in Australia, this would result in less opportunity for employment in Vietnam. However, the Tribunal notes that any hardship to the applicant, his family members or his girlfriend was avoidable if the applicant had simply studied as he was supposed to in Australia. Any hardship that the applicant, his family members or his girlfriend are now likely to suffer is as a direct result of choices made by the applicant.

1. In any event, the Tribunal finds that the applicant’s lack of desire and ability to undertake higher education courses in Australia heavily outweighs any hardship that he, his family members or his girlfriend may face because of the cancellation of his visa.

1. Considering the circumstance as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s subclass 573 visa.

1. Those are my reasons for decision.

1. END OF ORAL DECISION

Tigiilagi Eteuati Member