TRAN (Migration)

[2020] AATA 5775

TRAN (Migration) [2020] AATA 5775 (22 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss THI XOAN TRAN

CASE NUMBER:  1901448

HOME AFFAIRS REFERENCE(S):          BCC2018/4229132

MEMBER:Donna Petrovich

DATE:22 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 22 October 2020 at 11:37am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – applicant remained unenrolled for a period of 10 months –lengthy period of non-enrolment – lack of academic progress –applicant did not comply with condition 8202–decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), r 2.43, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 January 2019 made by a delegate of the Minister for Home Affairs 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 the applicant remained unenrolled for a period of 10 months 16 March 2018 until13 December 2018. 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 5 June 2020 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. The applicant was represented in relation to the review by her registered migration agent.

4. The Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. 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. 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.

   Background

6. The Tribunal received oral evidence from the applicant and the applicant’s migration agent, who gave evidence that the applicant was 20 years old at the time and living in a foreign country with no support, she told the Tribunal that the applicant had 12 months of study remaining to complete her current studies in December 2021, and that the circumstances around her not being enrolled were beyond the applicant’s control. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. The applicant is a 24 year old Vietnamese woman who was granted a Subclass 573 Higher Education Sector visa on 29 January 2015.  She arrived in Australia and was enrolled and commenced studying English on 23 February 2015 and completed the course on 29 January 2016. The applicant then enrolled in a Bachelor of Business at Le Cordon Blue College on 2 January 2016 and her enrolment records show that this was withdrawn. The applicant then enrolled in Certificate iv Business on 30 September 2016 at Cambridge College which enrolment records show as withdrawn.  The applicant then enrolled in Certificate iv Accounting Australian Academy of Commerce which she transferred and did not complete any units of study. The applicant then had a period of un-enrolment of 10 months as a result of family issues from 10 September 2017 until 9 July 2018. The applicant provided a current Certificate of Enrolment for Rosehill college for Advanced Diploma of Management 25 May 2020 to 10 December 2021. The applicant provided the Tribunal with a copy of the delegate’s decision record which contained Provider Registration and International Student Management System (PRISMS) records which shows that the applicant’s enrolment was cancelled due to non-enrolment from 16 March 2018.

8. A Notice of Intention to Consider Cancellation (NOICC) dated 13 December 2018 was sent to the applicant advising that she was in breach of a condition of her visa.  The applicant did not respond to the NOICC and did not dispute the grounds for cancellation.  The applicant acknowledged that she had received notification from her education provider regarding the cancellation of her Confirmation of Enrolment (CoE).  The applicant told the Tribunal that she had told the College of her circumstances but had not notified them in writing.  The applicant advised that she had been unable to attend classes for a period of 10 months due to concerns she had for her Grandmother who was suffering from Glaucoma and Cateracts.

9. The delegate cancelled the applicant’s visa on 18 January 2019 on the basis that the applicant was in breach of condition 8202(2) of the grant of the visa by not being enrolled in a registered course of study from 16 March 2018.

10. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. 

    Did the applicant comply with Condition 8202?

11. 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).

12. The Tribunal notes that enrolment in a course of study was at all times a condition of the applicants’ Subclass 573 Student (Temporary) (Class TU) Higher Education Sector visa.

13. The applicant at the hearing on 5 June 2020 told the Tribunal that she did not dispute the grounds for cancellation.  She acknowledged at the hearing when presenting oral evidence that on 16 March 2018 she was notified by the college of the cancellation of her COE.  The applicant did not advise the delegate of any reason that she had been unable to attend college. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.

14. Therefore, 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

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.

16. Prior to the hearing on 5 June 2020 the applicant provided a submission in response to the invitation to provide information dated 30 April 2020. In addition, the applicant provided the Tribunal with a further submission at the hearing on 5 June 2020.  The Tribunal has read and considered the applicant’s submissions for the purpose of making this decision.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or to remain in Australia.

17. The applicant arrived in Australia and was granted Subclass 573 Student (Temporary) (Class TU) Higher Education Sector visa on 29 January 2015. She told the Tribunal at the hearing on the 5 July 2020 that she had come to Australia to study and wished to complete her studies if given the opportunity. However, since being granted her visa on 29 January 2015 the applicant has not completed any course of study with the exception of English Language and has remained in Australia in breach of the conditions of her visa.

18. The applicant claims that she intends to continue her studies and is currently enrolled in a course of study. The applicant provided the Tribunal with a copy of CoE which appears to be obtained only after she was initially invited to attend a hearing of her matter.  In any event, the applicant has had a history of enrolling and then withdrawing or transferring courses without making any significant academic progress in the five years since her visa was grant. The Tribunal in considering this does not accept that the applicant has a compelling need to remain in Australia.

19. Accordingly, the Tribunal gives little weight to the applicant’s statement that the purpose of her travelling and staying in Australia was to study.

    The extent of compliance with visa conditions

20. The applicant was not enrolled for a period of 10 months from 16 March 2018 until 13 December 2018. The applicant has not shown dedication to her course of study and changed courses constantly and made little academic progress since her visa grant in January 2015. 

21. The Tribunal considers this breach to be significant and places weight against the applicant in this regard.

    The degree of Hardship that may be caused to the applicant

22. The applicant did not raise any significant matters of hardship in the hearing.  The applicant stated that she was very close to her grandmother who had raised her, and that she had concerns for her as she was old and had some problems with her hip and back, as well as the issues she had faced with problems with her eyes.  She told the Tribunal that her mother and father and sister lived in Vietnam, and ran a small business selling sea food. The applicant told the Tribunal that she would like to return home to her family and initially help out in the family business and then open her own sea food restaurant., and that she would like to complete her studies to enable her to do this, and that it would be easier for her to get her dream job if this was possible.  The Tribunal does not accept this as a form of hardship. 

23. The applicant has been in Australia since 2015 and during this time has displayed a lack of commitment and progress in her studies and has not maintained focus on any particular course and achieved little academic success as a result.  No reasons were provided for to the Tribunal for her frequent changing courses, but it seems from the academic transcripts provided that the applicant did not achieve completion on any of the subject required.  This appears to be an attempt to remain in Australia to extend her stay on a more permanent basis rather than the temporary basis and the purpose of completing her chosen course of study. As such the Tribunal places no weight in favour of the applicant in exercising discretion no to cancel.

24. Accordingly, the Tribunal does not accept that the applicant’s evidence of her desire to continue her studies and complete the Advanced Diploma of Management at Rosehill College.  The applicant has completed a component of this course and has gained enough skills whilst living and working in hospitality, and as a nail technician to enable her to fulfill her ambition when she returns home.  Having gained a Diploma of Management, it appears that the applicant has already gained sufficient skills to obtain employment and continue with her chosen career on her return to Vietnam.

25. The Tribunal accepts that some disappointment and therefore some hardship may be experienced by the applicant by not being able to complete her studies and having to leave Australia, the Tribunal notes that the applicant will be eligible to apply for a bridging visa which may allow her to remain in Australia so that she can finalise any outstanding matters.

26. However, the Tribunal notes that in the event that the applicant’s visa is cancelled, under s.48 of the Act she may have limited options available to her if applying for further visa in Australia. In addition, she will be subject to Public Interest Criterion 4013 which means that she may not be granted a temporary visa for 3 years from the date of cancellation.

27. The applicant told the Tribunal that she missed her family, in particular her grandmother, and would be happy to see them again. While the Tribunal accepts that if the applicant’s visa is cancelled she will suffer some hardship by having to return to Vietnam without having completed a course of study, it does not accept the applicant’s evidence about the applicant’s study history or lack of continuous enrolment. The Tribunal in considering this, places little weight in the applicant’s favour.

    Circumstances in which the grounds for cancellation arose

28. The applicant was un-enrolled for a period of 10 months from 16 March 2018 until 13 December 2018. She told the Tribunal that she was 22 years old and very young.  She was finding study difficult and when her grandmother became ill in Vietnam the applicant found it difficult to concentrate.  When asked at the hearing what she did during this period she told the Tribunal that she spent her time on the phone to her grandmother and going to church to pray for her.  The applicant told the Tribunal that she did not speak to anyone of her concerns but kept her worries to herself.

29. The applicant provided a medical certificate from her grandmother who was diagnosed with Glaucoma and Cateracts.  When asked did she understand that this was not a life- threatening circumstance, she told the Tribunal she also had concerns because her grandmother lived alone and had problems with her hips and back.

30. During the hearing the Tribunal discussed with the applicant these issues and asked if she had informed the College of her issues.  She told the Tribunal that she had been to the office of the College where they told her she needed to concentrate on her studies.  When asked if she requested a deferment or put the matter in writing to the College, she said she had not.

31. The Tribunal in considering this evidence accepts that the applicant may have been worried for her grandmother; but does not accept that it affected the applicant’s ability to study as claimed.  The applicant had the option of deferring and perhaps returning home to see her grandmother, but she chose to not pursue this option, but rather did not formally notify either her College or the Department of her circumstances.  The Tribunal does not accept that these circumstances were beyond her control and does not give any weight in favour of the applicant in this regard.

32. Therefore, the basis upon which the applicant’s visa was cancelled under s.116 of the Act was that she was not enrolled in a registered course from 16 March 2018 until 13 December 2018 for a period of 10 months. That is in breach of condition 8202(2), and this was admitted by the applicant.

33. Accordingly, the Tribunal gives little weight to the applicant when considering this factor.

    Past and Present behaviour of the applicant

34. The applicant has been cooperative and courteous in all her dealings with the Tribunal.  No adverse information has been provided to the Tribunal and as such some weight is given to her in consideration of this factor.

    Persons in Australia whose visa would be cancelled under s.140

35. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be cancelled under s.140 of the Migration Act 1958 (“the Act”).

36. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

    Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled

37. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

    Other relevant factors

38. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.

39. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.                 

    DECISION

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

    Donna Petrovich
    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.