Tran (Migration)

[2020] AATA 2687

Tran (Migration) [2020] AATA 2687 (17 April 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Phuong Dung Tran

CASE NUMBER:  2001568

DIBP REFERENCE(S):  BCC2019/5003643

MEMBER:  Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:          17 April 2020 at 11:08 am (VIC time)

DATE OF WRITTEN RECORD:                27 May 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 27 May 2020 at 11:00pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – deferral not sought – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 January 2020 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

1. At the hearing on 15 May 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The applicant’s name is Ms Tran. This is an application for review of a decision dated 22 January 2020, made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 Student Sector visa under section 116(1)(b) of the Migration Act 1958. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study from 6 April 2018 onwards. The issue in the present case is whether that ground for cancellation is made out, and, if so, whether the visa should be cancelled.

1. The applicant appeared before the tribunal on 17 April 2020 to give evidence and to present arguments. The tribunal also received oral evidence from the applicant’s mother, Mrs Nguyen. The applicant was represented in relation to the review by her registered migration agent. The hearing was conducted with the assistance of an interpreter in the English and Vietnamese languages.

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

1. If the applicant has breached that condition, under section 116(1) of the Act, the visa may be cancelled. Condition 8202, as it applies in this case, requires that the applicant be enrolled in a registered course of full-time study or training. In the present case the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course. An examination of the delegate’s decision record notes that information before the department indicated the applicant did not maintain enrolment in a registered course of study from 6 April 2018 onwards.

1. A notice of intention to consider cancellation was issued to the applicant on 10 January 2020.

1. The applicant did not respond to the notice of intention to consider cancellation, which was sent to her via email. At the hearing the applicant admitted that she was not enrolled in a registered course from 6 April 2018 onwards. And she further informed the Tribunal that she didn’t check her email account regularly. And by the time she did check her email account and realised the notice of intention to consider cancellation was there, the time to respond to the department had lapsed.

1. On the evidence before the Tribunal, the Tribunal is satisfied that the applicant was not enrolled in a registered course from 6 April 2018 onwards. And, accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).

1. Having found that the applicant has not complied with a condition of the visa, the Tribunal must now 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.

1. The Tribunal is to have regard to the circumstances of this case, including matters raised by the applicant and matters in the department’s procedure advice manual.

1. As to the applicant’s purpose for travel and stay in Australia, the applicant was granted a Student (Temporary) (Class TU) subclass visa on 29 July 2016, for the purpose of undertaking a course of study at Deakin University, being a Bachelor of Education degree.

1. The Tribunal has had regard to various academic documents submitted by the applicant in advance of the hearing. Those documents establish that the applicant successfully completed various studies in English at Deakin University before her Bachelor of Education degree was cancelled by Deakin University on 6 April 2018. The course was cancelled on the basis that the applicant did not commence her Bachelor of Education degree. The applicant gave evidence that she was considering enrolling in a similar course at Victoria University, but ultimately did not do so. The applicant further gave evidence that she is currently considering various online courses that she wishes to undertake.

1. However, as at the date of this hearing, the applicant acknowledged that she is not enrolled in a registered course, and was not presently studying. The Tribunal considers that the purpose for which the visa was granted ended when the applicant failed to maintain enrolment in a registered course of study as at 6 April 2018.

1. The applicant has elected to remain in Australia without a valid Confirmation of Enrolment in a registered course of study since 6 April 2018. The applicant stated that she stayed in Australia because she had thoughts to return to studies. However, I find that in considering the abovementioned evidence, it is clear that the applicant’s purpose of stay in Australia is no longer in line with the purpose for which her visa was granted. And I give this significant weight in favour of cancelling the visa.

1. As to the circumstances in which the grounds for cancellation arose, the grounds for cancellation arose because the applicant failed to maintain enrolment.

1. The applicant informed the Tribunal that she returned to Vietnam in between February 2018 and mid-March 2018. During that time she found out that her parents had become divorced. This realisation caused her stress and she didn’t wish to return to Australia, but her mother wanted her to return to Australia to study. When she returned to Australia, the applicant informed the Tribunal that the reason for the breach of her visa condition was twofold. First, her mother wanted her to get married to an Australian man with Australian citizenship and did not want her to continue her studies at Deakin University. That is why she did not return to her studies at Deakin in early April 2018. Shortly after that time she went to live with her aunt. Her aunt lives in close proximity to Victoria University. The applicant further gave evidence that she looked into enrolling in a similar course at Victoria University. The applicant further gave evidence that her mother and her aunt suggested she might study at Victoria University because the fees were cheaper than at Deakin University. However, she still encountered difficulties with her mother not wishing to pay for the fees for her study, because she wished for her to get married.

1. The applicant gave evidence that she did seek a deferral of her studies at Deakin University. The applicant stated that she did not take that step because she was contemplating at a later stage studying at Victoria University.  The applicant gave evidence that she did not seek to obtain a release letter from Deakin University, because she was stressed with her parents’ divorce at the time, and so simply did not take that step. The applicant gave evidence that she did not contact the Department of Immigration when she stopped studying in April 2018. The applicant stated that she did not take that step because she still wished to study. But that her mother didn’t want her to at that time.

1. The applicant stated further that she did not go back up to Vietnam in or around April 2018 onwards because she wanted to obtain an education in Australia, and also that her mother wanted her to get married to an Australian citizen. The Tribunal has also had regard to the evidence of the applicant’s mother, Mrs Nguyen. The evidence of Mrs Nguyen is wholly consistent with the evidence of the applicant as I have just set it out. The Tribunal has had regard to a certificate of divorce provided by the applicant, evidencing her parents’ divorce in 2016. The applicant’s mother gave evidence that she wished for her daughter to obtain a qualification in Australia so that she could return eventually to Vietnam and assist in the family business.

1. The applicant’s mother also stated that she did wish for her daughter to marry an Australian man with Australian citizenship and that she did not want to pay for her university fees at the time. The Tribunal has taken all of these matters into account. Considering all the evidence, the Tribunal is not satisfied that the reasons for the breach of the visa condition were outside of the control of the applicant and the Tribunal gives this consideration significant weight in favour of cancelling the visa.

1. As to the extent of compliance with visa conditions, there is no evidence before the Tribunal of non-compliance with other visa conditions. However, given the length of time that has passed with non-compliance, the Tribunal considers the non-compliance with condition 8202(2) to be significant.

1. The Tribunal considers the requirement to maintain enrolment as an important condition for the grant of a student visa, and the Tribunal notes that although the applicant has contended she wishes to study in the future, there is no substantial or material evidence before the Tribunal that the applicant has genuinely taken steps to affect this objective, and the Tribunal gives these matters some weight in favour of cancelling the visa.

1. As to a degree of hardship that may be caused to the applicant, the Tribunal acknowledges that the applicant may suffer some emotional or psychological hardship as a result of the cancellation. The Tribunal acknowledges that the applicant will have to return home in circumstances where she will not have completed her studies.

1. The Tribunal acknowledges the applicant’s evidence that she may not be able to study in her home country on account of her age, and that she will not have a qualification to assist her work in the family business in her home country. The Tribunal affords these matters some minor weight in favour of not cancelling the visa.

1. The circumstances of this case are not such that any person’s visa would be consequently cancelled under section 140 of the Act. The Tribunal therefore does not give this any weight for or against a decision to cancel the visa.

1. As to the applicant’s past and present behaviour towards the department, the Tribunal notes that the applicant did not respond to the notice of intention to consider cancellation on account of her failure to attend to the email address where the notice was sent. The Tribunal notes the applicant’s evidence that she did not contact the department when she ceased to study in April 2018. On the basis of those matters, the Tribunal is not satisfied that there is a reason beyond the control of the applicant for failure to respond to the notice of intention to consider cancellation. And I give these matters some minor weight in favour of cancelling the visa.

1. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable to detention under section 189 and/or removal under section 198 of the Act if she does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent her from applying for certain types of visas while in Australia. However,

these are mandatory and intended consequences of the legislation. And given that the circumstances giving rise to the breach were reasonably within the control of the applicant, I do not consider this to be manifestly unfair, and the Tribunal gives this consideration a little weigh in favour of cancelling the visa.

1. There is no evidence before the Tribunal to suggest that the applicant has children in Australia, nor that cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before me, I do not give this consideration any weight for or against cancelling the visa for this consideration.

1. As to whether there were any other relevant matters, the Tribunal notes that the applicant expressed concern about not being able to obtain a flight home to her home country on account Covid 19 pandemic. The applicant also stated that she wished to go back to study and had been looking at various online courses presently.

1. The applicant also provided two documents to the Tribunal in the Vietnamese language. The applicant informed the Tribunal that the documents evidenced land holdings of her mother and her mother and father jointly, and the applicant informed the Tribunal that she wished the Tribunal to have regard to these documents to demonstrate the fact that she would be able to pay for fees for a course in the future.

1. The Tribunal has had regard to all those matters and I do not consider that those matters weigh in favour of cancelling or not cancelling the visa for any particular reason in view of the matters I’ve set out above. If it is the case that the applicant is unable to depart from the country due to the Covid 19 crisis, it will be incumbent upon the applicant to contact the department to clarify her visa status.

1. Although the matters set out above do not reveal bad faith on the part of the applicant, it is clear, based on all the evidence set out above, that the reasons for the breach of the visa condition were not due to matters that were outside of the control of the applicant.

1. It is also clear that the considerations I’ve arrived at, on examining and weighing all the evidence before me, lead towards the visa being cancelled and I so find.

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

DECISION

1. The Tribunal affirms the decision under review.

Vanessa Plain Member