Tran (Migration)

[2017] AATA 143

Tran (Migration) [2017] AATA 143 (11 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Son Ngoc Tran

CASE NUMBER:  1606893

DIBP REFERENCE(S):  BCC2016/974908

MEMBER:Brendan Darcy

DATE:11 January 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 11 January 2017 at 9:55am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – Not a genuine student – No substantive visa – Lack of due diligence – Lack of academic progress – Intends to remain in Australia with new family – No extenuating circumstances beyond control – Not motivated to study

LEGISLATION

Migration Act 1958, ss 116(1)(fa), 116(1)(fa)(i), 116(1)(fa)(ii), 116(1A), 119, 140,

Migration Regulations 1994, r 2.43(1C), (1D), Condition 8202, PIC 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 May 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. On 4 May 2016, the delegate cancelled the visa under s.116(1)(fa) on the basis that the applicant was not a genuine student. 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 9 January 2017 to give evidence and present argument. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. 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

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(fa) - not a genuine student

6. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

7. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

8. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

9. There is nothing before the Tribunal to indicate that the applicant’s participation that the course had been deferred or temporarily suspended by the provider of the course.

10. The applicant arrived in Australia while holding a class TU subclass 573 student visa for higher education which was granted

11. When making the application for review, the applicant provided to the Tribunal a copy of the primary decision record. The decision noted that the Provider Registration and International Students Management System (PRISMS) record. The Tribunal has also referred to its copy of the PRISMS record on its file. Also on the Tribunal’s file is a copy of the cancelled CoE with Della International regarding the applicant’s last enrolled course. These records indicates the following:

Visa Granted

2 November 2012 due to expire on 11 May 2016. The applicant is enrolled in Holmesglen with the following study package or plan:

·     General English (4-52) weeks;

·     Advanced Diploma of Hospitality ; and

·     Bachelor of  Hotel Management

Ceased Studies

16 November 2012

Not Enrolled

17 November 2012 to 29 September 2013 (ten month period)

Enrolled and Commenced

11 October 2013 at Baxter Institute for Certificate II in ESL (Access). Completed on 20 December 2013

Not Enrolled

21 December 2013 to 16 January 2014

Enrolled but not Commenced

17 January 2014 for Certificate III in ESL (Further Study)

Enrolled and Completed

28 February 2014 to 9 May 2014 for Certificate 1 in ESL (Access)

Enrolled but not Commenced

23 May 2014 in Certificate II in ESL (Access) with Baxter Institute and did not undertake any study

Enrolled and Completed

29 September 2014 to 29 March 2015 in Certificate II in ESL (Access) with Della International College and completed

Enrolled but Cancelled

2 February 2015 in Bachelor of Hotel Management with Holmesglen Institute of TAFE. The course was cancelled on 30 June 2016

Enrolled and Completed

27 April 2015 to 25 October 2015 in Certificate II in EAL (Access) with Della International College

Enrolled but Cancelled

22 March 2016 to 12 May 2016 to April 2015  in Certificate IV in Business Administration with Della International College[1]

[1] AAT Folio 17

1. The delegate determined on the basis of the information that the applicant had not studied in a registered course such a considerable amount of time and on the basis on and that the applicant had significantly changed educational pathways since coming to Australia that as a holder of a subclass 573 visa the applicant did not have a genuine intention to commence or complete a higher degree. On that cumulative basis the delegate determined that the primary purpose for the applicant holding a student visa is not for the purpose of study and that he is not, or likely not to be, a genuine student.

2. The applicant was issued a Notification of Intention to Consider Cancellation (NOICC) under section 116(1)(fa)(i) of the Act that the applicant is not, or is likely not to be, a genuine student on 19 April 2016.

3. On 4 May 2016, a personal statement was received from the applicant in relation to the NOICC prior to the cancellation by the delegate. The applicant responded stating that he was offered to enrol in a Bachelor of Hotel Management with the Charles Sturt University; that he was from a non-English speaking background and it was difficult to catch up and that the learning methods were very different from his home country; and that he wanted to progress to the next level of his education with confidence so he applied to undertake an English course. Attached to the emailed response were Certificate II and a Certificate III in EAL with Della International College with letters of completion and result statements.[2]

   [2] DIBP Folio 19-21

4. On 11 May 2016, the delegate notified the applicant his visa was cancelled. The delegate noted that there was no evidence the applicant had commenced a single course for higher education studies (a Bachelor or Masters) since he was granted a visa; that he had extended periods of both non-enrolment and of being enrolled without attending any courses of study; he achieved a maximum attendance of 8.2 per cent and a maximum academic per cent of zero while at Baxter Institute; that the applicant was reported by Della International College on 11 April 2016 the applicant’s Certificate of Enrolment will be cancelled due to non-commencement of study.

5. The applicant attended the scheduled hearing on 9 January 2017 to present oral evidence and to provide arguments not to cancel his visa. Below is a summary of the oral evidence provided by the applicant:

6. With regards to whether he had been a genuine student or is likely to be one, the applicant stated that he had trouble with the English language courses and often commenced but did not complete the courses to improve his English. He provided a number of other extenuating circumstances, including the death of his adoptive mother in April 2013, his new and serious relationship with a fellow Vietnamese national who had a child to her previous husband and general stress. The applicant stated that he hoped to find a much better education provider to help with his English language so he could restart his studies.  The applicant stated he originally wanted to study and find employment in Vietnam but then met his de facto spousal partner. This response strongly indicated that the applicant did not intend to remain in Australia as a student and his priorities were not full time study as required by the conditions imposed on his visa. The applicant added that he is now the biological father to a daughter with his de facto spouse and he feared emotional hardship if he was required to depart Australia. He said that he would re-enrol in courses to demonstrate to his parents that he was studying so as they would continue to forward around $5000 dollars per month. He did not claim any financial barriers affecting his studies except that he would not be able to save as much for his family if he did study regularly. Otherwise it was the career ambition of the applicant to manage hotels. The applicant said he felt some stress while in Australia but it did not require medical treatment. When asked about completing English language courses, the applicant admitted that he did not actually complete the course. He added that the education provider had issued to completion results for inexplicable reasons. Asked if the applicant had read the decision record given his weak capacity in the English language, he said that he used google translate and was unsure if he had received any legal advice.

7. Based on the information before the delegate, and in the absence of any contradictory evidence from the applicant, the Tribunal finds that the applicant did not commence, let alone complete a single unit of study since arriving in Australia in 2012 in a higher education course in which he was enrolled. The Tribunal finds that the applicant spent considerable period not being enrolled in any course at all or not attending many of the enrolled courses. The Tribunal notes that the applicant did formally complete some of his English study courses but also claimed that the completion letters issued by Della International College misrepresented his studies as he did not actually complete the courses. On the basis of the applicant’s responses which strongly indicated that his enrolments were partially designed to deceive his parents for ongoing financial support and that his purpose of remaining in Australia was to be with his new family and not study, the Tribunal finds very little evidence that the applicant was not, or is likely not to be, a student genuinely committed to advancing his academic progress. 

8. On that basis, the Tribunal does not consider that the applicant has been a full time student since his arrival in Australia and considers that, given the period in which the applicant has not been studying, the Tribunal is satisfied that the applicant was not, and is likely not to be a student in Australia in the future.

9. Considering all of the evidence, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

11. Having found that the applicant has not complied with section 116(1)(fa) of the Act, the Tribunal must consider whether to exercise its discretion to cancel the visa.

12. 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).

13. The applicant provided a copy of the delegate’s decision to the Tribunal.

14. As mentioned above the applicant attended a scheduled hearing to provide oral testimony and present arguments. No further evidence or submissions were required at the end of the scheduled hearing.

15. On the day of the scheduling hearing and up to the time of writing this decision, the Tribunal has not received any further evidence of any kind. The Tribunal is satisfied the applicant was provided with a meaningful opportunity to give evidence and present arguments. 

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

16. The applicant submitted to the Tribunal that he wanted to commence and complete any study in a higher education course with an Australian education provider and he wanted to work in hotel management. He also stated that he had not undertaken any work, including in the hospitality sector, since arriving in Australia and that his work experience in the same sector in Vietnam was observing the operations of his uncle’s hotel. Given the applicant did not undertake any studies in a higher education course at all and was admittedly disengaged in his other enrolled courses when he was not enrolled at all, the Tribunal places very little weight on his claimed aspiration for study and a professional career in favour of not cancelling his visa.

17. The applicant claimed that he has struggled to attend class because his English was weak and because he found the studies in English to have been a poor quality. The applicant also admitted that he re-enrolled in courses as evidence to his parents that he was undertaking studies so as to maintain their forwarding of $5000 per month to support him in his studies. When the Tribunal asked the applicant to explain his lack of studies given his sound financial situation, the applicant claimed his English was poor, that he was just drifting along in life and he wanted to save money for him and his family.  In this regard, the applicant claimed at the scheduled hearing that he did not require even part-time work. This otherwise frank response strongly indicated to the Tribunal that his purpose of remaining in Australia was to deceive money from his parents. Given the applicant’s financial situation and the ongoing opportunities for study, these responses strongly indicate to the Tribunal that the applicant had no intention of studying, either in the past or into the foreseeable future, as the purpose of his travel to Australia. Accordingly, the Tribunal places little weight on these responses in favour of not cancelling the visa.

18. The applicant also claimed that he became a father to an 11 month old daughter with a fellow Vietnamese national whom he described as his de facto wife with a child from a previous marriage. He said that he began a relationship soon after arriving in Australia and she was seeking to acquire permanent residency through a partner visa which he understood to be under review by the Tribunal. During the hearing, the applicant stated he preferred to save the money he would have spent on tuition in favour of his family’s living expenses and that he did not work or study as he was waiting for his visa and his wife’s visa status to be settled. These responses strongly indicate to the Tribunal that the applicant was not motivated to study in the foreseeable future and it places considerable weight on these admissions in favour of cancelling the applicant’s visa.

19. As discussed during the hearing, the Tribunal considers the applicant’s overall lack of application in his studies and his responsibilities as a visa holder might indicate to it that the applicant’s purpose in remaining in Australia was not to study. Having considered the responses of the applicant, the Tribunal does not accept that the applicant's intention at that time of arriving in Australia, or now, in travelling to and staying in Australia, is primarily or even significantly to study. The Tribunal finds on the evidence before it that this is not his purpose in travelling to and staying in Australia, and with my concerns above, the Tribunal gives this considerable weight towards the visa being cancelled as the applicant is not and is likely to not be a genuine student.

    The extent of compliance with visa conditions

20. There is some evidence before the Tribunal to indicate the applicant did not comply with other conditions imposed on his visa. During the scheduled hearing, it was discussed that the applicant was required under condition 8202 imposed on his visa to maintain enrolment in his course of study or training at the same level for which he was granted a visa; maintain satisfactory attendance; and maintain course progress for his study as required by his education provider.  The applicant was not enrolled in a Bachelor or Master degree between November 2013 and February 2015 which the Tribunal finds to be a significant amount of time.  PRISMS records and the decision record indicate that the applicant did not commence or achieve satisfactory attendance in many of his enrolled courses. Based on this evidence, the applicant was not in compliance with many aspects of condition 8202 imposed on his visa.  The Tribunal places significant weight on this towards the visa being cancelled.

21. During the scheduled hearing, the applicant was asked if he had maintained his private health insurance cover. The applicant stated that he was unaware he had private health coverage as it was purchased when he applied for a student visa and added he would not be able to provide evidence. This response strongly indicates that the applicant has not maintained private health insurance. The Tribunal places some weight on this towards the visa being cancelled. 

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

22. As noted above, the applicant did not claim any financial hardship if he was required to leave Australia based on his student visa being cancelled and returning to Vietnam. However he did claim there would be a negative impact on his emotional life if he were separated from his wife, his adopted child and his biological child. The applicant added that he expected his family to visit him regularly in Vietnam so the hardship might be manageable.   As such whilst the Tribunal accepts that the applicant may suffer some emotional hardship if the visa remains cancelled, it finds on the evidence that he has not demonstrated any significant hardships and no financial hardships to the Tribunal. The Tribunal gives this factor some weight towards the visa not being cancelled.

    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.

23. According to the decision record and the Tribunal’s findings, there were grounds for the cancellation of this visa under review as the departmental records and the applicant’s oral evidence indicated that he was not and is unlikely to be a genuine student in accordance with s.116(1)(fa)(i). The Tribunal has accordingly considered if there were any extenuating circumstances beyond the applicant’s control that led to the grounds for the cancellation.

24. At the scheduled hearing, the applicant argued that his general non-attendance, lack of academic progress and non-enrolment relied on a number of factors. One of these included the death of his adoptive mother in April 2013; however that does not explain the applicant’s lack of academic attendance and progress as well as his breach of 8202 prior to April 2013 or the substantial period of non-compliance. He stated he was unsure how to return to Vietnam. When the Tribunal noted that the applicant was not free to travel in and out of Australia while holding a student visa and he could have sought advice, the applicant then claimed the family members of his adoptive parent did not want him there. As discussed during the hearing, this evidence was inconsistent and unconvincing and did not explain more than three years’ worth of a lack of academic progress. Accordingly, the Tribunal places very little weight on this as an extenuating circumstance relevant to his non-compliance.

1. The applicant offered two other reasons for his lack of compliance: his poor English and general stressfulness. The applicant did not claim to have any past or ongoing mental health conditions or to have sought treatment. Accordingly the Tribunal places little weight on this factor as an extenuating circumstance. With regards to his poor English, the Tribunal notes that the applicant blamed the quality of teaching. However the applicant has demonstrated little interest or perseverance in the application of his studies and it places little weight on this factor as an extenuating circumstance or that his poor English language capacity was beyond his control.

2. The applicant offered another reason to be cumulative considered, namely his new relationship with a woman who had a child arising from a previous marriage and the subsequent pregnancy and birth of his own biological child with his de facto partner.  Beginning a new relationship and persevering with that commitment does not exclude full-times studies especially when the applicant does not claim any financial hardship in his circumstances. When this was put to the applicant, he stated he wanted to enrol in courses as evidence to his parents that he was engaged in studies but he did not want to spend money on tuition and related costs and was not motivated to study or work because of these new circumstances. The applicant’s overall oral evidence strongly indicated to the Tribunal that the applicant’s relationship with his de facto partner did not constitute an extenuating circumstance but a lifestyle preference which relied upon his parents remitting a regular income to him.  Accordingly, the Tribunal places little weight on these claimed reasons, even cumulatively considered, for the applicant’s considerable non-compliance and in favour of finding the applicant has no intention of ongoing study, either in the past or in the foreseeable future, and that his personal and familial relationships did not constitute any extenuating circumstance beyond his control at all.

3. Overall, having considered each of these claims to have an extenuating circumstance beyond the applicant’s control as grounds for the cancellation that is under review in this decision, the Tribunal finds there are no individual reasons or a combination of these reasons that would amount to either being extenuating or beyond his control. Accordingly the Tribunal places little weight on these reasons in favour of not cancelling the visa.

   Past and present conduct of the visa holder towards the Department

4. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal gives this some 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

5. 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

6. The Tribunal accepts that if the visa remains cancelled that the applicant, who is a Vietnamese national, would have limited opportunities to remain in Australia and may have to depart or be detained. The Tribunal accepts the applicant may be subject to a Section 48 bar which will limit his options to apply for further visas in Australia and that he may be subject to Public Interest Criterion 4013 whereby the applicant will not be granted a temporary visa for three years from the date of cancellation. These aspects were discussed at the scheduled hearing. The applicant claimed he was unaware of the mandatory legal consequences although he was aware he would have to depart. He also stated that he was unsure if he had any legal advice since his visa was cancelled.  The review applicant has presented no specific evidence in relation to these factors and accordingly the Tribunal gives these mandatory legal consequences only little weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

7. 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

8. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

   Any other relevant material

9. There is no other relevant material to consider.

   Conclusion

10. In summary, the Tribunal accepts that there will be some degree of emotional hardship to the applicant if the visa remains cancelled in him having to leave the country and an inability to study in Australia in the future. The applicant makes no claim to financial hardship at all. The applicant’s lack of academic attendance, progress and enrolment indicates he had breached condition 8202 which was imposed on his visa. The applicant admitted to deceiving his parents for money. There is an overall lack of application towards the studies he undertook to complete and a lack of due diligence towards his responsibilities as a visa holder.  The Tribunal is not satisfied that there are any extenuating circumstances beyond his control which mitigate the applicant’s failure to be, or likely to be, a genuine student. The Tribunal is not satisfied that the hardship the applicant will face if the visa remains cancelled, or any other factors, outweigh the fact that the applicant has not been a genuine student since arrival. Based on the findings above, the applicant is likely not to be a genuine student in the future. The Tribunal is of the emphatic view that the visa remains cancelled.

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

    DECISION

12. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Brendan Darcy
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.