Tran (Migration)

[2019] AATA 3634

Tran (Migration) [2019] AATA 3634 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Thi Ngoc Huyen Tran

CASE NUMBER:  1916937

HOME AFFAIRS REFERENCE(S):           BCC2019/1016944

MEMBER:T. Quinn

DATE:13 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 13 August 2019 at 8:38pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – course enrolment – change of course – study history unclear – inconsistent evidence – decision under review affirmed    

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 June 2019 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the current visa’) under section 116(1)(b) of the Migration Act 1958 (‘the Act’).

2. The applicant has been in Australia since 18 August 2013 on student (and associated bridging) visas and was granted the current visa on 13 November 2017.[1]  The applicant is from Vietnam and initially came to Australia with the intention to study in English and Business with a view to using those qualifications in her family’s business in Vietnam, which is a wholesale wood supplier for furniture.  However, since her arrival, the applicant has changed her study and career plan and now wishes to pursue a career in community service.

   [1]           See delegate’s decision.

3. On 24 June 2019, the delegate cancelled the current visa on the basis that the applicant had failed to comply with a condition of the current visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not complied with a condition of their visa. In this case, the applicant breached subclause 2(a) of condition 8202 of her visa in that she failed to maintain enrolment in a full time registered course. [2]  The applicant did not comply with this condition of her visa from 27 July 2018 to 24 June 2019.[3]  A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

   [2] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).

   [3]           See delegate’s decision.

4. On 27 June 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.

5. The applicant appeared before the Tribunal on 12 August 2019 to give evidence and present arguments. 

6. The applicant was assisted in relation to the review by their registered migration agent.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

8. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

9. The Tribunal has had regard to all the information before it, including the Department File, all information and evidence provided by the applicant to the Tribunal.

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

    STATUTORY FRAMEWORK

11. The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.

12. Under section 116 of the Act, the Minister may cancel a visa if she 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 subsection 116(1)(b) of the Act. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

13. A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:

    a.be enrolled in a registered course, or in limited cases,  a full time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (2);

    b.has not been certified by her or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and

    c.has not been certified by her or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

14. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full time registered course of study or training.

15. The applicant was enrolled in a Bachelor of Business (Community Services Management).   This enrolment ceased on 27 July 2018 and the applicant was not enrolled in a full time registered course of study from that date until 24 June 2019. 

16. At the hearing, the applicant acknowledged and accepted that there are grounds for cancellation.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion to cancel the visa

18. 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 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

19. The applicant arrived in Australia at the age of 19.  The applicant then commenced an English course.  Her study history is not entirely clear to the Tribunal, the delegate’s decision refers to the applicant having completed five English courses since her arrival, but the applicant has only provided certificates to the Tribunal for two such courses, one undertaken from 3 August 2015 to 18 December 2015 and one undertaken from 23 October 2017 to 22 December 2017. 

20. The applicant gave evidence that her initial arrival in Australia was to undertake Bachelor of International Business at Victoria University but she stated that University did not teach that course to international students so she did not commence that course.  She stated that she instead moved to Monash University but that Monash did not accept her English course from Victoria University so she also completed an English course at Monash (which was reflected in the certificate supplied by the applicant in relation to the course undertaken in 2015).

21. The applicant stated that she has decided to study community service because the social security system in Vietnam is not very good and these types of services are at a very low standard compared to those in Australia and she wants to develop a higher service in Vietnam.  The applicant commenced a Bachelor of Business (Community Services Management) in early 2017 and she has supplied a document from her course provider dated 21 August 2017 which indicates she undertook four subjects in this degree but only passed one subject.  The certificates supplied demonstrate that the applicant then undertook a further English course from October to December 2017.  It appears from the material supplied by the applicant that she has not actually engaged with any study since December 2017, although she filed written submissions indicating she always complied with her enrolment condition prior to 27 July 2018 and the Tribunal accepts this but maintains that it appears the applicant was not engaging with study, despite being enrolled.

22. The applicant stated that in July 2018 she took a break from study and returned to Vietnam to visit her mother who was admitted to hospital on the day of the applicant’s arrival to Vietnam being 12 July 2018.  The applicant’s evidence was that her mother was being treated for spinal degeneration and it was very serious and that the applicant was told her mother might suffer paralysis of the whole body and be unable to walk again.  The applicant stated that her mother’s health had improved a little bit by around September 2018 and that by April 2019 her mother was completely recovered.  The applicant supplied a number of medical documents.  These documents were not consistent with the applicant’s oral evidence, save that her mother was admitted to hospital on 12 July 2018.  The documents supplied by the applicant indicated that her mother was admitted to hospital on 12 July 2018 suffering from headaches, dizziness and hypertension and was discharged on 17 July 2018 with outpatient medication.  The discharge report of 17 July 2018 noted brain circulatory disorders, hypertension and hypokalaemia (levels of potassium in the blood).  She also supplied a document indicating her mother had a urinary system infection in April 2019.  There is no mention of any spinal problems or paralysis.  The applicant supplied two lab reports indicating the results from blood tests and all such figures were within the normal range with the exception of the applicant’s mother’s glucose levels.  The applicant also supplied a CT Scan report dated 25 July 2018 which noted no brain abnormalities.  The applicant filed a further medical document dated 19 April 2019 which stated a diagnoses of spinal degeneration, however, there is no evidence that this is what the applicant’s mother was suffering from at the time of the applicant’s visa breach in July 2018 and no evidence whatsoever of a risk of paralysis.  The medical evidence supplied by the applicant supports a conclusion that the applicant’s mother was unwell in July 2018 but does not support the applicant’s assertions of spinal degeneration at the time of her visa breach and/or risk of paralysis at any stage.  When questioned about the inconsistencies, the applicant stated her mother also had high blood pressure and back pain from the manual labour involved in measuring the volume of wood sold in the family business.  The Tribunal accepts this evidence but considers it does not explain the applicant’s failure to comply with her visa conditions. 

23. The applicant submitted that her family were well off financially when she first arrived in Australia and produced a bank account from August 2017 reflecting a sum of approximately $70,000AUD equivalent held in a Vietnamese bank account.  She stated that the issues faced by her mother in July 2018 forced her mother to cease work in the family business and that her father then became unwell and had to enter retirement early.  She produced a document indicating her father retired on 1 April 2019.  The applicant stated that until April 2019, things were too difficult financially for her parents to afford her study in Australia.

24. A Notice of Intention to Consider Cancellation dated 1 May 2019 (‘NOICC’) was sent to the applicant.  The applicant did not respond to this and has not supplied any material in support of her case until the day of hearing to either the Department or the Tribunal.  When asked why she did not respond to the NOICC, the applicant stated her utmost concern was her mother’s health and she did not check her emails regularly and just stayed at home and talked to her family over the phone.  The Tribunal finds this evidence difficult to accept.  The applicant indicated in her evidence that her mother’s health was completely better and her mother was working in April 2019 and that her father had retired and things were improved financially at that time.  It is implausible that an individual not working or studying would spend their entire time at home talking on the phone.  The Tribunal is troubled by the applicant’s evidence in relation to her failure to respond to the NOICC and considers that a genuine student who takes their study seriously would have taken more positive steps to ensure they were complying with the conditions of their visa, including checking email correspondence and taking appropriate action in response to a NOICC.  Certainly, on the evidence it would seem that even if the impact of her parent’s health on the applicant is to be accepted, from the end of 2018 or at the very latest from April 2019, the applicant was in a position to recommence her studies – this predated the NOICC.

25. The applicant stated that she was young when she first arrived in Australia and did not appreciate the importance of the proposed study, that she has now grown up and realises how important study is to her future.  She stated that her parents have paid so much money for her to be in Australia and now without any qualifications it is very frustrating and she needs to return the investment they have put into her by bringing back a qualification.  She states the course she intends to undertake is new and new in Vietnam and she wants to bring her knowledge home to Vietnam and apply it to good social services systems such as helping people learn English, helping the minority groups in mountainous and coastal areas have access to education and social services and helping victims of domestic violence to know their entitlements and have access to support. 

26. The applicant’s representative submitted that the applicant will have difficulty getting a good job without a degree and that she is too old to study at university in Vietnam now.  The Tribunal has difficulty accepting these submissions and considers that the applicant’s English studies and nearly six years living in an English speaking country will adequately equip her for the goal of teaching in English in Vietnam and that there would be alternative study options in the field of community service in Vietnam, even if doing so online is necessary. 

27. The applicant’s representative filed further written submissions on 13 August 2019.  These reiterated many of the statements made during the applicant’s hearing.  The additional submissions worth note were that:

    a.the applicant received the NOICC;

    b.the applicant would need ‘at least 3 to 4 years to get the bachelor’s degree in Vietnam’ (compared to 2-2.5 years if undertaken in Australia); and

    c.Vietnam does not offer a Bachelor in Community Service.

28. The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this constitutes a compelling need to remain in Australia.  Further, the Tribunal notes that the applicant has been onshore for nearly six years and has had ample opportunity to engage with and complete a Bachelor level course and considers she has options to complete further studies in Vietnam if she chooses and could certainly work in the field of community service without a tertiary qualification as many individuals do.

29. The Tribunal notes that the nature of the student visa programme is necessarily temporary and after nearly six years onshore, the Tribunal has concerns about the applicant’s true intentions.  The Tribunal considers the applicant does not have any compelling need to remain in Australia as she could study in her home country.  The Tribunal considers the evidence in favour of and against cancelling the applicant’s visa are finely balanced in this case.

    Circumstances in which ground of cancellation arose

30. The applicant’s evidence at hearing has been outlined above.  In July 2018 the applicant’s mother had health issues, then later the same year her father had health issues.  These health issues affected the applicant’s family financially and the applicant was shocked, worried and confused.  She did not give evidence about seeking any medical assistance herself and it appears from her documents that she has not engaged with the Bachelor of Business since August 2017 – nearly a year before her mother’s health issues – and has not engaged with any study since the start of 2018, six months before her mother’s health issues commenced.

31. The Tribunal accepts that the applicant’s mother had some health issues in July 2018 but considers the applicant has exaggerated the extent of these.  The Tribunal empathises with the applicant and her family in relation to their health and financial issues and understands the applicant’s mother’s health problems must have come as a shock, as must have any impact this had on the family financially.  However, the option to return to Vietnam to avoid breaching her visa conditions was open to the applicant at all times.  In fact, the applicant did return to Vietnam on 12 July 2018 and gave evidence that she stayed in Vietnam for one and a half months; it was open to her to remain there until she felt able to recommence her studies.  This would have been a practical option to avoid breaching her student visa conditions.  The applicant gave evidence that she had wanted to remain in Vietnam but her parents advised her to return and continue with her studies.  However, she did not do this.  Instead, she failed to resume any study for some months, was issued with a NOICC which she did not respond to and her visa was subsequently cancelled without any explanation provided by the applicant at all until the day of hearing.  This is not the conduct one would expect of a genuine student who takes their responsibilities in residing onshore on the basis of a student visa seriously.

32. The Tribunal acknowledges the applicant’s parent’s health and financial position were out of the applicant’s control, but also considers that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same.  It is the responsibility of a visa holder to ensure they are complying with the conditions of their visa.  The Tribunal gives equal weight in favour and against cancelling the applicant’s visa in this regard

    Extent of compliance with visa conditions

33. The Tribunal notes the applicant’s evidence that she has otherwise complied with student visa conditions.  However, on the evidence she supplied, the applicant has not made the academic progress one would expect of a genuine student who has been onshore on the basis of a student visa for, at the time of her cancellation, nearly five years – having only completed five English courses and not completed any course beyond this and failing the majority of subjects in the one semester of tertiary study that she did complete.  Further, the applicant’s breach of the condition of the current visa is extensive, being approximately eleven months.  The Tribunal considers the eleven month breach a significant breach and gives weight in favour of cancelling the applicant’s visa in this regard.

    The degree of hardship that may be caused to the visa holder and any family members

34. The applicant submitted that if her visa is cancelled, it is very frustrating and she needs to return the investment her parents have put into her by bringing back a qualification and that she will have difficulty getting a good job without a degree and is too old to study at university in Vietnam now.  It has also been submitted that if she did engage with the study in Vietnam it would take her longer to complete than in Australia and that the particular course she wishes to pursue is not offered in Vietnam.

1. The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

2. The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.

3. The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition.  Whilst appreciating the hardship the applicant and her family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

   The visa holder’s past and present behaviour towards the Department

4. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department.  The Tribunal gives some weight against cancelling the applicant’s visa in this regard.

   Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act

5. This is not relevant to the applicant.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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. If the current visa is cancelled, this will result in the following:

   a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

   b.the applicant will have limited options to apply for further visas in Australia;

   c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed.  The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.

   The Tribunal gives little weight to this consideration in favour of the applicant because:

   ·these are the intended consequences of the legislation when a visa is cancelled under these grounds;

   ·it reflects the seriousness with which the Department takes this type of cancellation ground;

   ·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.

   Australia’s international obligations

7. There is nothing before the Tribunal to suggest that the cancellation of the current visa would breach any international obligations.  The Tribunal places no weight on this in favour of or against the applicant.

   Any other relevant matters

8. The applicant’s career goals are commendable and the Tribunal recognises the significance of an individual seeking to improve the social justice system in their home country.  The Tribunal gives this some weight against cancelling the applicant’s visa in this regard.

   CONCLUSION

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

   DECISION

10. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    T. Quinn
    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.