Tran (Migration)

[2019] AATA 5580

Tran (Migration) [2019] AATA 5580 (11 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dang Hoang Tran

CASE NUMBER:  1826216

HOME AFFAIRS REFERENCE(S):          BCC2018/173640

MEMBER:Joseph Lindsay

DATE:11 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 11 December 2019 at 2:30pm

CATCHWORDS
MIGRATION – cancellation – Vocational Education and Training Sector (Class TU) visa – Subclass 572 (Student) – unsatisfactory attendance and progress, and cancelation of enrolment in registered course – compassionate or compelling reasons contributing to unsatisfactory attendance – father’s ill-health in home country – no appearance by applicant at hearing – discretion to cancel visa – factors for and against cancellation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 September 2018 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 applicant was invited to have a hearing before the Tribunal on 11 December 2019 at 8:30am. However, the applicant failed to appear for the hearing. No information has been provided to the Tribunal to explain the applicant’s failure to attend the hearing. The applicant has an appointed representative, Mr John Young. The hearing invitation was emailed to Mr Young at his email address on 21 November 2019. Two SMS messages about the hearing were sent to the mobile telephone number provided to the Tribunal that appear to have been successfully transmitted and received.  

3. If the applicant had appeared at the hearing, the Tribunal would have had the opportunity to ask questions of the applicant.

4. The Tribunal would have had the opportunity to ask the applicant why he breached condition 8202 of his student visa where he failed to remain enrolled in a registered course of study between 27 June 2017 and 20 March 2018 at Sydney International Business College (SIBC).

5. The Tribunal would have had the opportunity to ask the applicant why he failed to take reasonable actions in regard to maintaining his course enrolment or to notifying the Department about his failure to maintain compliance with his visa condition (8202). 

6. Accordingly, the Tribunal has decided to make a decision on the available evidence. 

7. 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

8. 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.

9. At the commencement of the hearing, the Tribunal asked the applicant if he had read and understood the information in the delegate’s decision record dated 12 April 2018, and he indicated that he did read the decision and he understood it.

   Did the applicant comply with condition 8202?

10. 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).

11. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

12. The Tribunal has considered the delegate’s decision record dated 5 September 2018 – as the applicant has provided to the Tribunal.

13. The delegate’s decision record notes that the applicant breached condition 8202 where he failed to remain enrolled in a registered course of study between 27 June 2017 and 20 March 2018.

14. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study between 27 June 2017 and 20 March 2018. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The circumstances in which the ground for cancellation arose

16. On 4 May 2018, the applicant provided a response to the Notice of Intention to Consider Cancellation (NOICC) dated 23 April 2018.

17. In his response, the applicant attempted to explain his circumstances. He said:

    I strongly believe the reason why my CoEs were not in the Provider Registration and International Student Management System (PRISMS) from 27 June 2017 to 20 March 2018 was that my CoEs with my previous school, Sydney International Business College (SIBC), were cancelled in an unfair and incorrect manners, which I have only recently known about that since the beginning of the first term 2018. I would like to explain my circumstances in more detail as below together with the evidence for your consideration.

    I enrolled to study the course package provided by SIBC started from 13/02/2017 to 09/02/2020 including Cert Ill in Business, Cert IV in Business and Diploma of Leadership Management. Not long after the course commenced, I was worried so much for my father as his health suddenly deteriorated. He was at his worst when he got a brain stroke and was paralysed in around June 2017. I was in shock when receiving the bad news from my mother. I did want to go back to Vietnam to visit my father when I heard that bad new, but my mom told me focus on study first, as she know I have job offer on May 2020, if I deferred my current course and went back to visit my father, I may could not finish my course on time and could lead to miss my job offer.

    As a result, I could not concentrate on my studies and failed behind the scheduled assessments of my course. I received the warning letter from my school on 27/06/2017. As it was about the middle of the 2^nd ' term of the course (the 2^nd out of four terms), I was told to try harder and keep up with the progress in the later terms of the course. After that, I continued my studies and tried to catch up.

    But in the beginning of the first term of Cert IV in Business course, I called to ask when I need to come for orientation as I have not received any email regarding for that issue, and I was told that my CoE was cancelled from 22/06/2017. I was in shock, as I did not know anything about that. Further investigating, it seems that my CoE was even cancelled before I received any final warning and intention to report letter from the school as the date my CoE was cancelled is on 22/06/2017 but the date I received the warning letter, on 27/06/2017. I was so distressed, and angry as I was still the student of SIBC over the whole period. I attached herewith the invoices of my tuition fee, which I already paid for the 3^rd term on Aug 2017, and the 4th term on Nov 2017 as well as emails receiving from schools regarding my tuition fee remind and class timetable during this period. I understand that I failed behind the scheduled of course assessments and also could not attend 100% classes because I was too worried about my father's health, but the school should not secretly cancel my CoEs without letting me know anything.

    Although I could not accept all these things, what has been done cannot been undone. All I could do was to find a better school to continue my studies and develop my career. After researching, I found another course package which is suitable to me. The package includes Cert IV in Project Management Practice and Diploma of Project Management provided by Australasia International School. The course is best suitable for me because the school does not require me to study the Cert Ill, but offered me to study Cert IV and Diploma right away which will help me to complete my studies at the same time as I planned before. Also, I have found a job offer in Vietnam since last year, which the company agreed to recruit me once I complete my studies in Australia.

    I would like to say thank you again for considering my case. I understand that I am in an unfavored situation as according to PRISMS, I did not enrol in any courses during that time. However, this was not really my fault and until now I still could not understand how all these happened to me right at the time when I was able to get back on my feet to continue my studies after my father recovered. I herby declared that all the information provided above was true. And I really hope that I can have one more chance to complete my studies as I do not want all of my efforts and my family's, especially my father's, to overcome our hardship become a waste.

18. The applicant attached a number of documents, including as follows:

    -emails from SIBC invoicing the applicant for tuition fees.

    -emails from SIBC about the applicant’s unsatisfactory course.

    -Confirmation of Enrolment (COE) certificates dated 24 February 2017 and 20 March 2018.

    -A “confirmation letter” dated 5 April 2018 indicating that the applicant’s father was ill and had received treatment in hospital in Vietnam on 15 June 2017.

    -A letter dated 1 May 2018 indicating that the applicant had been studying at Australasia International School. 

19. Had the applicant attended the hearing, the Tribunal would have asked the applicant about the assertions he made in respect to his experiences with his course provider and in respect to any adverse impact that his father’s ill health had on his studies.

20. However, the Tribunal notes that on the Departmental file, there is information from the applicant’s course provider about the applicant’s conduct whilst he was enrolled with that course provider. 

21. In an email dated 17 April 2018 Mr Louie Bai, the Chief Operation Officer of SIBC, stated:

    In regard to this student, Mr Tran was enrolled in the college since 13/02/2017 and the course package was Certificate Ill in Business (52 weeks, from 13/02/2017 to 11/02/2018), Certificate IV in Business (52 weeks, from 12/02/2018 to 10/02/2019) and Diploma of Leadership and Management (52 weeks, 11/02/2019 to 09/02/2020). His Cert Ill CoE, however, was cancelled on 27 June 2017 as the student showed no course progress & attendance at all during the first 3 months' studies. The student did make any response to the College's intention to report notice and warning letters. His Certificate IV and Diploma CoEs were subsequently cancelled due to non-commencement of study because the student is unable to start these subsequent courses without finishing the Certificate Ill Course.

    After the cancellation of CoE, the student did show up and our staff explained to him that the college could only reissue his CoE after he catch up his course progress, and the student expressed the wiliness to do it and would try to start his Certificate IV course on time.

    The student, however, disappeared again after that.

    ….

    As a result, I would like to confirm that:

    1. The student is no longer studying in our institute due to unsatisfactory course progress. 

22. In a further email dated 12 July 2018 Mr Owen Xu, Managing Director of SIBC, stated:

    I have attached a list of documents related to this student and will clarify the matters as requested. This students cancellation resulted from poor academic progress as the student completed O units of their required course as well has having very low attendance.

    As to why the emails were sent out to the student at the time we recently took over the College from the previous owners and had to re-organise our student management system which resulted in some enrolments remaining active after their COE was cancelled.

23. Mr Bai attached a number of emails, including:

    -emails from SIBC to the applicant about his unsatisfactory course progress and attendance warnings, including a warning of unsatisfactory course progress dated 27 June 2017.

    -a Notice of Intention to Report for Unsatisfactory Attendance and Course Progress addressed the applicant dated 19 July 2017 indicating that the applicant’s overall attendance rate was 10.3%.

    -the applicant’s transcript of academic record showing that the applicant completed no subjects at all for the Certificate III of Business that he had been enrolled in at SIBC.

24. If the applicant had attended the hearing, the Tribunal would have been able to put this information to the applicant in accordance with s359AA of the Act. However, the Tribunal was not able to do so.

25. In the applicant’s response, he appears to admit that he was a poor student. However, the evidence from SIBC is clear that the applicant received regular notifications from SIBC about unsatisfactory course progress and attendance warnings – and the Tribunal places high weight on this information. The evidence from SIBC is clear that by 27 June 2017 the applicant was reasonably notified that he had no achieved satisfactory course progress – and the Tribunal places high weight on this information.

26. The evidence from SIBC is clear that by 19 July 2017 the applicant was reasonably notified of the Notice of Intention to Report for Unsatisfactory Attendance and Course Progress. In this notice, the applicant was expressly advised that:

    -His enrolment in the Certificate IV in Business at SIBC commenced on 08/04/2017.

    -During the orientation program, staff reminded the applicant of his obligations in upholding his visa conditions while studying and living in Australia.

    -He must maintain a satisfactory attendance rate of 80% of his scheduled overall course contact hours.

    -He must make satisfactory course progress for each study period.

    -He must maintain sufficient funds to pay for travel, tuition and living expenses while in Australia.

    -SIBC staff also advised the applicant that any student whose attendance rate falls below 80% of their scheduled overall course contact hours will be reported to the Department of Immigration and Citizenship (DIAC) via PRISMS.

    -This breach of his student visa conditions may result in the cancellation of his student visa.

    -His overall attendance rate had fallen below 80%, and in fact his overall attendance rate was 10.3%.

    -Because his attendance and Course Progress were deemed unsatisfactory, he was informed of SIBC’s intention to report him to DIAC.

    -SIBC acknowledged his rights and for the purposes of procedural fairness, he was encouraged to access the SIBC internal complaints and appeals process if he believed one or more of the following had happened a) SIBC had not recorded or calculated his attendance correctly; b) there was compassionate or compelling reasons which have contributed to his unsatisfactory attendance; c) SIBC has not implemented other policies which may have impacted upon his results; d) SIBC has not made such relevant policies available to him.

    -The procedure for making an appeal could be obtained from SIBC Reception.

    -He was reminded that he had 20 working days from receipt of the letter (plus reasonable time for postage and handling) to make any appeal.

27. There is no indication that the applicant responded to the Notice of Intention to Report for Unsatisfactory Attendance and Course Progress.

28. Accordingly the Tribunal does not accept the applicant’s submissions that SIBC cancelled his COE in an unfair or incorrect manner. On the contrary, SIBC appears to have afforded every reasonable opportunity to respond to the issues raised by SIBC about his enrolment and unsatisfactory course progress.

29. There is no indication that the applicant advised SIBC about his father’s alleged health situation, or of any adverse impact his father’s alleged health situation had on his ability to study. Indeed, the “confirmation letter” dated 5 April 2018 indicates that the applicant’s father became ill (cerebral vascular/temporary paralytic) and received treatment at the hospital on 15 June 2017, and that treatment continued from “06/2017 to 02/2018”. There is no information on the certificate indicating that the applicant’s father was ill or received treatment prior to 15 June 2017. Accordingly, the Tribunal does not accept that the applicant’s father’s ill health had any impact on the applicant prior to 15 June 2017. The Tribunal finds that the applicant’s father’s ill health on 15 June 2017 does not explain why the applicant performed so poorly in his studies at SIBC from the time he commenced his studies in February 2017 – the time well before any issue arose of to his father’s alleged ill health. In any event, the “confirmation letter” dated 5 April 2018 was not provided with a NAATI accredited translation. Accordingly, the Tribunal does not accept the applicant’s claims, in summary, that SIBC cancelled the applicant’s enrolment in an unfair or incorrect manner, or that his father’s alleged ill health had anything at all do with the applicant’s unsatisfactory course progress or his poor attendance rate or any reason why he completed no subjects at all for the Certificate III of Business at SIBC.

30. Accordingly, the Tribunal gives no weight to the applicant’s submissions and documents he provided to the Department and the Tribunal places high weight on the information from SIBC against the applicant.

31. In consideration of the above circumstances, the Tribunal finds that these circumstances are not exceptional circumstances and they are not beyond the applicant’s control.

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

32. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

33. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

34. In his response to the NOICC, the applicant made no indication of any hardship that may be caused to him if his student visa was cancelled.

35. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

36. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

1. The applicant does not have any dependents on his student visa who would be affected if his student visa was cancelled.

2. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

3. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to Vietnam.

4. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

5. The Tribunal places no weight on this information in the applicant’s favour.

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

6. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

   Any other relevant matters

7. There are no other relevant matters to consider before the Tribunal.

   Conclusion

8. The Tribunal finds that the applicant has not been enrolled in a registered course of study between 27 June 2017 and 20 March 2018. Accordingly, the applicant has not complied with condition 8202(2)(a).

9. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.

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

    DECISION

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

    Joseph Lindsay

    
    

    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.