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

1. 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).

2. 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.

3. 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.

4. The applicant was represented in relation to the review by her registered migration agent.

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 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.

10. 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.

11. On the bases of the information provided, the applicant does not deny she was not in a registered course of study.

12. 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

13. 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.

14. 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

15. 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. 

16. 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.

17. 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

18. 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.

19. 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

20. 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.

21. The applicant arrived in Australia on 18 December 2014. She said her teacher was racist and made her feel uncomfortable. She said she was the only Vietnamese student there. The teacher tried to explain things but made her feel she was stupid. She said she continued to study and she asked questions and remained in the course. Eventually she asked a friend to help her with a transfer to a different school. She was given the name of a man who could help her transfer to a school with more Vietnamese students and where teachers would be more helpful. However he said she must wait as he was too busy at that point in time to arrange it. While she was waiting for a transfer he helped her with her paperwork and lodged everything under her email and not his own. She said she gave him her email address and password and he sent emails under her name. He said that there is no authorisation required and this is easier. The Tribunal asked the applicant for evidence of any paperwork or receipts or information about the person. She said he also had a low fee money transfer business. He did not give her receipts for payment. She has no evidence to support her claim he assisted her.

22. She confirmed that she paid him for his assistance however he never arranged the course for her and as such she was not enrolled with any provider in any course.  She said she was scared and tried to call him and waited for a response whilst her friends were enrolled in their courses. She contacted him many times and he would never answer the phone or others would answer. When she was not studying she claims she stayed at home and she felt isolated and locked herself up in the room and felt stressed.

23. The applicant explained that she doesn’t have family in Australia and she relied completely on an agent who did everything for her. She said she went to a different agent. He said her English was not good enough and to wait as he had a lot of files waiting for him but that he could resolve the problem. She saw him in May but he did not submit the application until November. She said that in Vietnam it is different and she was confused and did not know. She said for example in Vietnam you go to school every day and everyone relied on their agent. She said they did what they were told to do. The Tribunal asked the applicant if she reported the agent. She stated no. She said that she hasn’t reported it but she did think about posting it on Youtube.

24. The Tribunal asked the applicant what she did herself to try and rectify the situation when she realised the problem with the agent. She said she contacted the school to explain. They said to go to reception and when she went no one was there. She said one Chinese person called the agent and she was told to sit and wait however she couldn’t see anyone so she left.

25. The Tribunal has considered the circumstances around the breach both individually and cumulatively. It gives no weight in favour of the applicant not to cancel a visa because whilst it is plausible that she received incorrect advice, the responsibility sits with the applicant to ensure she meets the requirements of the visa. The applicant continued to compound the issue by remaining in the community for over a year and not studying or being enrolled in a registered course. Whilst the Tribunal accepts that the applicant might be young and naïve it is not a reason for not reporting a situation or trying to rectify it. The applicant did nothing. The Tribunal does not consider the circumstances in which the ground for cancellation arose to be beyond the applicant’s control.

    Hardship to the visa holder and her family members

26. In the applicant’s submission dated 13 April 2017 she claims cancellation would cause significant hardship for the applicant and her parents both emotionally and financially. They have worked hard to support her and a cancellation would be shameful and she would lose face because she would fail to come home with qualifications which she would use in her family business.

27. She said that if her visa was cancelled her family would be very angry and she does not know what will happen as he has invested a lot of money to invest overseas and she would not dare to go home. Her mother said she could not return home.

28. Her father would not want to lose face. He was very proud of her admission into a course in Australia and had told his friends and business partners.

29. The applicant was asked if her parents knew her visa was cancelled and she said her mother knows. Her mother wants her to have another opportunity and she will send her money. Her father is difficult and she said he would kill her if he found out. She has no brothers or sisters. She said her mother said wait for the agent. She was asked why her father was never told. She said that in Vietnam her father did not give her much love and she had to study all the time and has a hot temper and she was scared of him. She described him as a business man and reputation is important to him. She was not allowed to meet up with friends but just study.

30. The Tribunal acknowledges that the cancellation of the applicant’s visa would be disappointing to the applicant and her family and that there are financial and emotional consequences.  However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

    Past and present conduct of the visa holder towards the Department

31. The Tribunal asked the applicant why she did not respond to the Notice of Intention to Consider Cancellation. She said she did not receive any letters notifying her that her visa was being cancelled. She stated that she received an email but the address was wrong. There was [a character] missing from the email. Her email address should have been [specified email address].

32. She was asked how she knew her visa was cancelled. Her course provider sent her an email which notified her. She said it happened on the night of her birthday and she was scared that her father would find out. She sought help from a migration lawyer recommended by friends and this cost $300. She went to level 15 of Immigration to get a copy of the NOICC at 2pm.The agent explained that they needed a copy of it to lodge with the Tribunal. She said that she returned to apply for a bridging visa E and the staff in Immigration were also racist and looked like they were annoyed with her.

33. The Tribunal notes that the Department file does have the applicant’s original email listed as [incorrect email address]. This information came from TRIM and was further confirmed with the applicant’s course provider.  The Department called the applicant to discuss her study situation and to obtain updated contact details. The call was received and answered but numerous people spoke and then hung up (BCC2016/2890688 folio 3 and 11).

34. It is not generally part of the Tribunal’s role to examine the procedures followed by the Department to ensure that the statutory requirements have been met. In Zubair v MIMIA (2004) 139 FCR 344 at [28] and [32], Krummrey v MIMIA (2005) 147 FCR 557 at [3] and Alam v MIMIA [2004] FMCA 583 (Barnes FM, 11 October 2004) at [42] following Zubair. However, there are some circumstances in which defects in Departmental procedures, that may otherwise invalidate a process, can be remedied by the Tribunal. Specifically, the Tribunals can ‘cure’ a defect in natural justice or procedural fairness that occurred in the delegate’s decision, such as a defect in the ss.119-121 notice requirements, through their own procedural fairness mechanisms. In this instance, the review process itself enables the applicant to have their case reviewed.

35. The Tribunal notes the explanation as to why the applicant did not respond to the NOICC and accepts this. No consideration has been given to the applicant not responding. There is nothing before the Tribunal which indicates that the applicant has conducted herself or had any dealings with the Department which have been anything other than what would be expected. The Tribunal gives this no weight in not cancelling the visa.

    the extent of compliance with visa conditions

36. The applicant said that she has always tried to comply with her conditions and claims that the breach occurred due to the wrong advice from friends and her Education Advisor.

37. The applicant was granted a student visa in order to study in Australia. As such her intention must be to study, maintain enrolment, attendance and course progress. She was not enrolled in a CRICOS registered course from 25 September 2015 to 4 September 2016 which is almost a year whilst she has remained in Australia on a visa which is for the purpose of study. Her last recorded date of actual study was 17 April 2015 when she finished her General English course until she recommenced study on 5 September 2016.

38. Furthermore, she was not enrolled in a Bachelor or Masters level course since 25 September 2015 and has therefore also been in breach of condition 8516.

39. The applicant has had a significant period of non-compliance with conditions on her student visa and as such the Tribunal gives this no weight in not cancelling the visa.

    Whether there are persons in Australia whose visas would or may be cancelled under s 140

40. The applicant is alone in Australia and a cancellation would not impact on anyone else’s visa. There is no evidence that there would be consequential cancellations in this case.

41. The Tribunal gives this no weight in not cancelling the visa.

    Whether there are mandatory legal consequences to a cancellation decision

42. Should the applicant’s visa remain cancelled she would be required to obtain a bridging visa to ensure her remaining time in Australia was lawful whilst she made arrangements to depart.

43. She is likely to be s.48 barred which would limit her ability to apply for other visas onshore and she may also face a three year exclusion from applying for another visa to Australia.

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

44. This is not a breach of the holder of a subclass 457 visa.

    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

45. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to her immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion.

46. However, the applicant’s approach to her studies has demonstrated a disregard for the visa and its requirements over the most part of her time in Australia and not just for an isolated period. Whilst noting that she relied on others to change courses and they did not follow through, ultimately she is responsible for meeting the conditions on her visa. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

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

47. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    any other relevant matters

48. The applicant said she would like to be able to continue to study and all she wants to do is study. She wants her family to stay together and she knows she was wrong and she wants a second chance and to do something for her future. She would be able to study but if her father found out she would be disowned. She urged the Tribunal to give her a second chance.

49. The Tribunal has considered the applicant’s explanation and interest in studying now however the breach is significant and the Tribunal gives this limited weight in not cancelling the visa.

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

   DECISION

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

   Rachel Westaway
   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.