Tran (Migration) - [2018] AATA 653

Tran (Migration) [2018] AATA 653 (31 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Thi Mai Ly Tran
CASE NUMBER:  1618486
DIBP REFERENCE(S):  BCC2016/2890688
MEMBER:Rachel Westaway
DATE:31 January 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 31 January 2018 at 4:37pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a Higher Education course – No enrolment for a significant period – Change of English studies provider delayed by education advisor and provider – Cancellation notice sent to incorrect email address
LEGISLATION
Migration Act 1958, ss 48, 116, 119-121, 140, 189
Migration Regulations 1994, Schedule 8, Condition 8202, 8516, r 2.43
CASES
Alam v MIMIA (2004) FMCA 583
Krummrey v MIMIA (2005) 147 FCR 557
Zubair v MIMIA (2004) 139 FCR 344

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 28 October 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that in spite of the applicant being sent a Notice of Intention to Consider Cancellation (NOICC) she did not respond and as such the delegate had no information available regarding the period of non-enrolment and the circumstances that could be taken into consideration. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 18 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by her registered migration agent.
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
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?
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tran (Migration)

Details

AGLC: Tran (Migration) [2018] AATA 653
Case: [2018] AATA 653
Decision Date: 31 January 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Tran, an applicant for a Student (Temporary) (Class TU) visa, subclass 573. The dispute concerned the cancellation of Ms. Tran's visa, which was based on her alleged failure to comply with the conditions of her visa, specifically condition 8202 of Schedule 8 to the Migration Regulations 1994. The Tribunal was tasked with determining whether Ms. Tran had breached this condition and, if so, whether to exercise its discretion to cancel her visa.

The primary legal issue before the Tribunal was whether Ms. Tran had complied with condition 8202, which requires a student visa holder to be enrolled in a registered course and to achieve satisfactory course progress and attendance. The Tribunal specifically examined whether Ms. Tran was enrolled in a registered course for the period from 25 September 2015 to 4 September 2016, as indicated by Provider Registration and International Student Management System (PRISM) records, and whether her last registered day of study was 17 April 2015. The Tribunal also considered whether there were compelling reasons to exercise discretion against cancelling the visa, taking into account the applicant's stated reasons for the non-enrolment and her personal circumstances.

The Tribunal found that the evidence before it established that Ms. Tran was not enrolled in a registered course of study for a significant period, thereby breaching condition 8202(2) of the Regulations. While acknowledging Ms. Tran's intention to study and the difficulties she encountered with her education advisor and provider, the Tribunal concluded that these circumstances did not negate the breach. Furthermore, the Tribunal was not satisfied that Ms. Tran had a compelling need to remain in Australia that would warrant overriding the cancellation decision. The Tribunal also noted that the cancellation notice had been sent to an incorrect email address, but this did not alter the substantive finding of a breach.

Ultimately, the Tribunal affirmed the decision to cancel Ms. Tran's visa. The Tribunal concluded that, considering all the circumstances, the cancellation of the applicant's Class TU visa was appropriate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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? 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). In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The Tribunal put to the applicant that the Provider Registration and International Student Management System (PRISM) records indicate that she was not enrolled in a registered course of study from 25 September 2015 to 4 September 2016. This is a significant period of eleven months. Furthermore her last registered day of study was 17 April 2015. The applicant provided the Tribunal with a submission dated 13 April 2017. It included a bank account balance confirmation, details of Cambridge International School 2017 programme information and a submission detailing the applicant’s circumstances. The submission confirmed that the applicant arrived in Australia on 18 December 2014 on a subclass 537 student visa and commenced a General English course for three months and then English for academic purposes for a further three months until June 2015. She claims she was told by her education provider she must continue to study English prior to her Certificate IV in Frontline Management. She was not given a time frame and her English teacher was intimidating. She said she followed the advice from friends and changed schools. The applicant stated that she took the advice of her Education Provider and ceased studies whilst waiting for the change of new education providers. On the bases of the information provided, the applicant does not deny she was not in a registered course of study. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).Consideration of the discretion to cancel the visa 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. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).the purpose of the visa holder’s travel and stay in Australia

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Rachel WestawayMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).Consideration of the discretion to cancel the visa 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. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).the purpose of the visa holder’s travel and stay in Australia The applicant came to Australia to study in December 2014. She came to study English and then a Certificate IV in Frontline Management, a Diploma of Management and a Bachelor of Business. Her last recorded date of study was 17 April 2015. She claims to have commenced her studies and confirms she attended for three to four months. The Tribunal notes that the applicant has provided an updated certificate of enrolment for Zhara Institute as evidence of her genuine intention to study. An untranslated copy of her parents’ financial statement was also supplied as supporting material to show that she can continue to be supported in her studies. She also supplied programme information pertaining to Cambridge International College. The Tribunal accepts that the applicant’s intention was to study and therefore gives some weight in favour of the applicant not to cancelling the visa. whether the visa holder has a compelling need to travel to or remain in Australia There is nothing before the Tribunal to indicate that the applicant has a compelling need to travel or remain in Australia. Whilst the applicant has highlighted that she would like to remain in Australia to study, there is nothing preventing the applicant from studying English of Management in Vietnam. The applicant stated that her parents would be very angry and she could not return home. However the applicant also stated that her mother knew about her visa cancellation. The applicant had applied for a student visa which is a temporary visa and as such came with the expectation that she was here temporarily as would her parents. There is nothing in Australia that the applicant has detailed which would require her to remain other than her parents not wanting her to leave. The Tribunal is not satisfied that the applicant has a compelling need to travel to or remain in Australia which would mean his visa should not be cancelled.Circumstances in which the ground for cancellation arose It was submitted that the applicant is a genuine student and she lacked confidence to deal with problems due to her age and inferiority complex and mistreatment by her teacher. She remained in Australia as she did not want to disappoint her parents. She claims she was taken advantage of by people who said they would help her and did not.