TRAN (Migration)

[2017] AATA 2693

TRAN (Migration) [2017] AATA 2693 (6 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss THI BICH NHI TRAN

CASE NUMBER:  1619880

DIBP REFERENCE(S):  BCC2016/3103474

MEMBER:Michael Ison

DATE:6 December 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 06 December 2017 at 5:00pm

CATCHWORDS
Migration – Cancellation – Student visa – Subclass 573 Higher Education Sector visa – Breach of visa condition – Failure to enrol in a course – Breach of working rights – Hardship – Family pressure to study – Multiple course enrolments previously – Visited ill mother – Failed to notify education institution – Sought to transfer to another institution

LEGISLATION
Migration Act 1958 ss 116(1), 116(1)(b), 140, 189, 198
Migration Regulations 1994 r 2.43(1)(a) Schedule 4 Criteria 4013 Schedule 8 Conditions 8104(1) , 8202, 8202(2), 8202(2)(a), 8202(3)(a)-(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 18 November 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.Miss Thi Bich Nhi Tran, the applicant, is 27 years old and arrived in Australia in July 2013 from Vietnam.

3.The delegate cancelled the visa on the basis that Ms Tran had not been enrolled in a registered course of study since 31 December 2015, contrary to the requirements of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (the Regulations).

4.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5.Ms Tran appeared before the Tribunal on 10 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6.For the following reasons, the Tribunal has concluded that the decision to cancel Ms Tran’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

7.The issue in the present case is whether Ms Tran, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Regulations. If she has breached that condition, under s.116(1) of the Act, her visa may be cancelled.

Did the applicant comply with Condition 8202?

8.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)(a)

·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).

9.In the present case, Ms Tran’s visa was cancelled on the basis she was not enrolled in a registered course.

10.      The Department’s decision dated 18 November 2016 records:

Based on evidence available to me in the Provider Registration and International Student Management System (PRISMS), it appears that [Ms Tran] has not been enrolled in a registered course of study since 31 December 2015.[1]

[1] Tribunal file folio 7.

11.The Department’s decision also records that the Department sent Ms Tran a Notice of Intention to Consider Cancellation of her visa (NOICC) on 27 October 2016.

12.Ms Tran responded to the Department’s NOICC by email on 2 November 2016. In her response Ms Tran stated:

… I also would like to explain why I have not been studying since December 2015.[2]

[2] Department file, folio 11.

13.Ms Tran said to the Tribunal that she agreed she had not been studying since December 2015. This means that prior to the cancellation of her student visa, Ms Tran had not been studying for over 10 months.

14.On the evidence before the Tribunal, Ms Tran was not enrolled in a registered course with an approved provider at the time of the Department’s decision to cancel her visa. Accordingly, Ms Tran has not complied with condition 8202(2) and the ground for cancellation of her visa is made out.

Consideration of the discretion to cancel the visa

15.Having found that Ms Tran has not complied with a condition of her visa, the Tribunal must consider whether to exercise its discretion to cancel her visa.

16.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 Ms Tran as to why her 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 and whether the visa holder has a compelling need to travel or remain in Australia

17.Ms Tran said she came to Australia to study because both her parents and she thought she would have a better chance of getting a job when she returned to Vietnam where she would earn enough money to be able to support herself.

18.The Tribunal accepts, as the Department did in its decision letter,[3] that Ms Tran’s original intention in travelling to and staying in Australia was to study.

[3] Department file, folio 17.

19.The Tribunal gives this consideration little weight towards not exercising its discretion to cancel Ms Tran’s student visa as she has failed to be enrolled in a registered course from 31 December 2015 until the cancellation of her visa on 18 November 2016. Prior to the cancellation of her visa, Ms Tran had over 10 months to rectify her failure to maintain enrolment, but did not do so.

The extent of compliance with visa conditions

20.Ms Tran said she thought she had complied with all conditions of her visa, other than condition 8202.

21.In its decision letter, the Department indicated it had no information to indicate that Ms Tran did comply with the other conditions applied to her visa. Put another way, this means the Department also had no information before it to indicate that Ms Tran had not complied with all other conditions of her student visa.

22.During the hearing Ms Tran told the Tribunal that since February 2016 she had been working 28 hours per week up until the hearing date.

23.This is a breach of condition 8104(1) that a visa holder to whom the condition applies must not engage in work for more than 40 hours per fortnight whilst in Australia. Condition 8104 is applied to all student visas. Condition 8104(1) is subject to a number of exceptions or qualifications, none of which apply in Ms Tran’s case.

24.On the evidence before the Tribunal Ms Tran was in breach of condition 8202 for over 10 months and was in breach of condition 8104 for approximately nine months until her student visa was cancelled on 18 November 2016.

25.These are substantial breaches which go to the very purpose of the visa Ms Tran held. That is, a student visa which is a temporary visa to allow people to come to Australia to gain qualifications to use back in their home country or elsewhere. The work limitation is placed on such visas to ensure the visa holder studies and does not use the visa to stay in Australia to work rather than study.

26.Accordingly, the Tribunal places very signficant weight on this consideration as supporting the Tribunal exercising its discretion to cancel Ms Tran’s student visa.

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

27.Ms Tran indicated that if she returned to Vietnam without a degree or other qualification earned in Australia her life in Vietnam would be very hard. She said it would be very hard for her to get a job to support herself and this would be a problem because her parents are elderly and cannot continue to support her. Ms Tran said that her parents are farmers in Vietnam.

28.Ms Tran told the Tribunal that both she and her parents think that a degree from a foreign country is important to being able to secure a job, in comparison to having obtained a qualification in Vietnam.

29.Ms Tran indicated she would be very regretful if she cannot finish her study and her parents would not be very happy that she cannot study in Australia.

30.The Tribunal accepts that the cancellation of Ms Tran’s student visa by the Department has been very upsetting for her. The Tribunal also accepts that if the Tribunal were to affirm that cancellation this would cause Ms Tran financial and emotional or psychological hardship because of lost potential future income and the very different plans Ms Tran would have to make for the future.

31.The Tribunal further accepts that the cancellation of Ms Tran’s student visa would cause emotional and financial hardship to her parents. This would occur through their disappointment in their daughter, the likelihood of them having to financially support their daughter for longer and the natural feelings they may have that the money they have spent supporting their daughter in Australia has been wasted if Ms Tran does not gain the qualifications she intended.

32.However, as discussed below, the Tribunal does not accept that Ms Tran has satisfactorily explained why she failed to maintain her enrolment and why she did not rectify that breach for so long.

33.The Tribunal expects that Ms Tran was aware of the obligations her student visa placed on her and the potential consequences of breaching any of those obligations, including the possible cancellation of her student visa. Therefore, the Tribunal gives the hardship Ms Tran will experience little weight toward not cancelling Ms Tran’s student visa.

34.The Tribunal accepts that Ms Tran’s family had little control over what Ms Tran did while she was in Australia to study. The hardship that may be visited upon them if Ms Tran’s visa remains cancelled may be significant and is outside their control. The Tribunal gives this some weight against exercising its discretion to cancel Ms Tran’s student visa.

Circumstances in which ground of cancellation arose

35.Before the Tribunal and in her response to the NOICC, Ms Tran described the circumstances of the breach of her visa conditions as follows:

·Ms Tran arrived in Australia in July 2013;

·Ms Tran found it hard to adapt to her new study environment in Australia leading to her failing her initial English studies;

·She completed an English course at Holmesglen Institute in 2014;

·She returned to Vietnam to “… relax my mind…” and then returned to Australia to continue her studies;

·Ms Tran completed a Certificate III in Accounting in July 2015;

·In August 2015 Ms Tran enrolled in a packaged course of study at Holmesglen which included:

oEnglish Language Intensive Course for Overseas Student (10 weeks);

oCertificate IV in Accounting;

oDiploma of Accounting;

oAdvanced Diploma of Accounting; and

oBachelor of Business;

·She then heard her mother was sick back in Vietnam and applied to Holmesglen to defer her studies, at that time the Certificate IV in Accounting, so she could go back to Vietnam to care for her mother;

·This application was approved and her studies were deferred to February 2016;

·Ms Tran returned to Vietnam in August 2015 to care for her mother. Her father could not care for her mother on his own at the time as he also had to work;

·Ms Tran stayed for one month in Vietnam caring for her mother and felt her mother’s health had improved enough for Ms Tran to be able to return to Australia to continue her studies;

·Ms Tran returned to Australia in September 2015;

·Because she returned to Australia before the deferment of her studies expired, Ms Tran enrolled in a 10 week English course;

·During this time Ms Tran felt stressed and unable to study, as she was worried her mother’s health condition may worsen and was worried about her family’s financial situation. Her family could not afford both her mother’s medical care at the time and to support her as an overseas student. The family’s financial situation was made worse because her father could not work as much as he usually did when Ms Tran was not in Vietnam to care for her mother;

·Ms Tran worked part-time at a restaurant from February 2016 until the present, generally for 28 hours per week or 56 hours per fortnight;

·She did not try to resume her studies or communicate with Holmesglen until March 2016;

·In March 2016 Ms Tran tried to resume her studies at Holmesglen but was not allowed to resume as her studies had been deferred to February 2016 only;

·Holmesglen advised Ms Tran they would allow her to resume her studies in the next semester if she had a valid reason for not re-commencing her studies in February;

·Ms Tran told Holmesglen about her mother’s illness, her family’s financial situation and the stress this had caused her. Holmesglen did not accept this as a valid reason for not re-commencing her studies on time and said they would report her to the Department;

·Ms Tran then sought the advice of an education agent to try and continue her studies;

·Ms Tran was advised to transfer schools and sought to transfer to Cambridge International College in June 2016;

·She experienced difficulty in transferring her studies, including obtaining a release from Holmesglen, which led to her not being able to enrol at Cambridge and delaying her studies until September 2016;

·During this time Ms Tran said she attended a hospitality short course at Box Hill Institute;

·Ms Tran received the Department’s NOICC in October 2016;

·Ms Tran then did a placement test of her English at Kaplan Business School and was advised to do another 15 week English course to fulfil the entry requirements;

·At the time the Department cancelled her student visa, Ms Tran was waiting for an offer of enrolment from Kaplan; and

·The Department cancelled Ms Tran’s student visa in November 2016, preventing her from being able to enrol and continue her studies.

36.      At the hearing Ms Tran handed the Tribunal 16 pages of documents. These included:

·A copy of an undated one page short course application and enrolment form for a Food Safety Supervision Level 1 and 2 at Box Hill Institute;

·A medical certificate dated 28 July 2015 from Cho Ray Hospital in Vietnam stating that her mother had been hospitalised for ‘… Acute back pain. Spondylosis of the lumbar spine…’[4] from 22 July 2015 to 24 July 2015 (three days). Ms Tran said her mother was actually hospitalised for two weeks, but the doctor wrote three days on the certificate because at the time the doctor did not know how long her mother would be in hospital for. Given the certificate was dated after the stated period of admission, it seems unlikely to the Tribunal that Ms Tran’s explanation is correct, but the Tribunal accepts that Ms Tran’s mother was sufficiently seriously ill to be hospitalised; and

[4] Tribunal file, folio 41.

·11 pages of copies of emails between Ms Tran, her education agent and Kaplan Business School relating to Ms Tran’s potential enrolment at Kaplan. The emails are dated between 28 July 2016 to 5 October 2016 and are mainly Kaplan requesting more information from Ms Tran’s education agent about her academic progress in Australia.

37.The documents handed to the Tribunal by Ms Tran support her recollection of the circumstances leading to the cancellation of her student visa.

38.In response to questions from the Tribunal, Ms Tran indicated that she thinks the circumstances leading to the cancellation of her student visa were beyond her reasonable control. She holds this view because she thought that Holmesglen would allow her to resume her studies in March 2016 because they would understand her situation of needing to care for her ill mother and the financial pressures her family was under as a result of her mother’s illness.

39.The Tribunal does not accept that Ms Tran’s explanations fully explain her failure to maintain her enrolment.

40.The Tribunal asked Ms Tran whether she had contacted Holmesglen after her return to Australia in September 2015 prior to seeking to recommence studies in March 2016. Ms Tran said she did not because she was confused and stressed and concerned that due to her family’s financial difficulties her parents may not be able to pay for her studies.

41.The Tribunal asked Ms Tran whether she sought any help, including medical assistance, during this period. Ms Tran replied that she did not and that she tried to sort out the matter herself.

42.When Ms Tran returned to Australia in September 2015 her stated intention was to resume her studies. It seems counter to this stated intention to the Tribunal that Ms Tran would leave her unwell mother in Vietnam to return to Australia to study and then not contact her education provider to confirm when she could resume her study.

43.It is also difficult for the Tribunal to accept the reasons offered by Ms Tran for having no communication with her education provider during this over five month period. Her education provider had already shown it was supportive of her situation by allowing her to initially defer her studies in 2015 to attend to her unwell mother.

44.For Ms Tran to just assume she could recommence her studies a month or more late does not seem to be the action of a genuine student, even allowing for Ms Tran’s distress and confusion at the time. Ms Tran had already demonstrated her ability to access Holmesglen’s student support services by obtaining a deferral of her studies.

45.An email or telephone call or visit to Holmesglen during that over five month period could have confirmed for Ms Tran that she could either obtain a further deferment (even if further information to obtain it was required) or that she would have to resume her studies in February 2016.

46.The Tribunal accepts Ms Tran was genuinely concerned about her parents’ ability to pay for her further studies at the time. Again, those concerns could have potentially been alleviated or managed by Ms Tran contacting Holmesglen to find out what options, if any, were available to her to help manage what turned out to be temporary financial difficulties.

47.These matters were entirely within Ms Tran’s control. During the hearing Ms Tran stated she accepted not resuming her studies in February 2016 was a mistake.

48.The Tribunal can understand Ms Tran not seeking medical assistance at the time, particularly if she was experiencing financial difficulties. However, it is more difficult for the Tribunal to understand Ms Tran not contacting Holmesglen to update her situation or even to seek help, particularly when Holmesglen was already aware of her personal (if not financial) situation having granted her a deferment due to that situation in 2015.

49.The Tribunal gives these matters some, but only very limited, weight toward the Tribunal not exercising its discretion to cancel Ms Tran’s student visa.

Past and present conduct of the visa holder towards the department

50.The Department’s decision letter states:

There is no evidence that the client has been uncooperative with the Department.[5]

[5] Tribunal file, folio 6.

51.The Tribunal therefore gives this consideration some weight toward not exercising its discretion to cancel Ms Tran’s visa.

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

52.      This consideration was not relevant in this review.

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

53.      The Department’s decision letter states:

If the visa were to be cancelled the visa holder would become an unlawful non-citizen. And as a consequence could be liable for detention under s189 and removal under s198 of the Migration Act 1958. The cancellation could also place a limitation on the visa holder’s ability to apply for further visas in Australia which could require the visa holder to return to her country of origin. The visa holder may also be affected by a risk factor preventing the visa holder from being granted a visa for Australia for a specified period.[6]

[6] Tribunal file, folios 5 and 6.

54.The Tribunal acknowledges that the possible cancellation of Ms Tran’s student visa may have specific legal consequences for her. These could include making Ms Tran an unlawful non-citizen which may prevent her from being granted another temporary visa. That could occur if the criteria for such temporary visa includes Public Interest Criteria 4013 (risk factors) and Ms Tran fails to make out compelling and compassionate circumstances for the grant of such a visa or the Minister refuses to intervene. This could prevent Ms Tran from obtaining another temporary visa until at least 19 November 2019.

55.The Tribunal gives this consideration little weight against the Tribunal exercising its discretion to cancel Ms Tran’s student visa. Ms Tran indicated during the hearing that if her visa remained cancelled she would return to Vietnam and could afford to do so promptly. Ms Tran indicated there is no impediment to her returning to Vietnam.

Whether there would be consequential cancellations under s.140

56.      This consideration was not relevant in this review.

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

57.      This consideration was not relevant in this review.

Any other relevant matters

58.Ms Tran indicated to the Tribunal that it was her mistake that she did not attend school, but she hoped she could have her student visa back as she still hopes and intends to study so that she can have a better future in Vietnam.

59.The Tribunal acknowledges Ms Tran made some genuine efforts to resume her studies during 2016. However, Ms Tran’s evidence did not convince the Tribunal about her commitment to future study. The Tribunal’s concerns are based on Ms Tran’s evidence about her past conduct. This includes her evidence about her failure to contact her education provider for five months and her evidence of working for 28 hours per week from February 2016.

60.As a result, the Tribunal did attribute some, but not great weight, to Ms Tran’s additional evidence against the Tribunal exercising its discretion to cancel her student visa.

Conclusion

61.The Tribunal has carefully considered Ms Tran’s evidence and circumstances as a whole, including all information on the Department’s file and the Tribunal’s file, the NOICC dated 27 October 2016, Ms Tran’s response dated 2 November 2016 and the Department’s decision dated 18 November 2016.

62.The circumstances the Tribunal gave weight to that supported the Tribunal exercising its discretion to cancel Ms Tran’s student visa included:

·the length and seriousness of the breach of condition 8202(2)(a) of Ms Tran’s student visa;

·Ms Tran also working in breach of condition 8104(1) of her visa for approximately nine months until her student visa was cancelled;

·her failure to avoid or remedy the breach of condition 8202 when she could have including by not contacting her education provider for five months and not trying to recommence her studies until her deferment had expired; and

·the Tribunal’s view that the breaches did not occur due to circumstances outside Ms Tran’s control.

63.These circumstances outweighed the weight the Tribunal was able to give to the circumstances that went against the Tribunal exercising its discretion to cancel Ms Tran’s visa, which included:

·the Tribunal accepting that Ms Tran and her family will suffer financial and most likely emotional hardship if her student visa was to remain cancelled;

·the initial genuineness of the reason for Ms Tran to defer her studies, being to care for her unwell mother in Vietnam;

·there being no evidence that Ms Tran had been uncooperative with the Department;

·the potential of adverse legal consequences for Ms Tran if her student visa is cancelled; and

·her attempts in 2016 to resume her studies and her stated desire to resume and complete her studies to improve her job prospects and life in Vietnam.

64.Considering the circumstances as a whole, the Tribunal concludes that Ms Tran’s visa should be cancelled as the considerations favouring the exercise of the discretion to cancel Ms Tran’s visa outweigh the considerations against the exercise of the discretion.

DECISION

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

Michael Ison
Senior 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.