TRAN (Migration)

[2019] AATA 6313

TRAN (Migration) [2019] AATA 6313 (8 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BA QUAN TRAN

CASE NUMBER:  1711048

DIBP REFERENCE(S):  BCC2017/1226929

MEMBER:Lynda Young

DATE AND TIME OF

ORAL DECISION AND REASONS:         8 August 2019 at 3:03 pm (NSW time)

DATE OF WRITTEN RECORD:                6 November 2019

PLACE OF DECISION:  Sydney

Statement made on 06 November 2019 at 11:08am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – not enrolled in a registered course of study – breached condition 8202 – medical evidence as to the younger brother’s health provided – applicant has obtained admittance to university – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 189, 198, 359
Migration Regulations 1994 (Cth), Schedule 8

APPLICATION FOR REVIEW

1.    This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 May 2017 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (Act).

2.    At the hearing on 8 August 2019, 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

3. This is an application for review of a decision dated 18 May 2017, made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s subclass 573 higher education sector visa under section 116(1)(b) of the Migration Act 1958.

4.    The delegate cancelled the visa on the basis the applicant had breached visa condition 8202(2)(a) by failing to be enrolled since 18 January 2017. 

5.    The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.

6.    The applicant appeared before the Tribunal for hearing on 8 August 2019 to give evidence and present arguments.  The applicant was assisted in relation to his application by his registered migration agent.  The hearing was assisted by an interpreter in the English and Vietnamese languages.

7.    For the following reasons the Tribunal has concluded the decision to cancel the applicant’s visa should be set aside. 

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 schedule28 to the Migration Regulations 1994. If the applicant breached that condition under 116(1) of the Act the visa may be cancelled.

Did the applicant comply with condition 8202? 

9.    Condition 8202 as it applies in this case required the applicant:

a.to be enrolled in a registered course that is a fulltime course of study or training;

b.has not been certified by his or her education provider as not achieving satisfactory course progress as specified in 8202(3)(a); and

c.has not been certified by his or her education provider as not achieving satisfactory course attendance as specified under 8202(3)(b).

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

2. Using the procedure specified under 359AA of the Act, the applicant’s PRISMS record was read to him during the course of the hearing.  Specifically the applicant’s PRISMS record indicated the applicant had not been enrolled in a registered course of study since 18 January 2017.  Were that information relied upon by the Tribunal that would be the reason to conclude that the applicant had not complied with condition 8202(2).

3. Following the providing of that information to the applicant using the procedure in 359AA of the Act, the applicant decided to provide his answer immediately and orally and did not seek additional time. 

4. The applicant provided reasons why he was not enrolled but ultimately did not, as I understand his evidence, dispute that he was not enrolled since 18 January 2017, although that was not necessarily known to him at the time.

5. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study since 18 January 2017 and accordingly, the applicant had not complied with condition 8202(2). 

6. As the applicant has failed to comply with that visa condition, the ground for cancellation in section 116(1)(b) is made out.

7. Having found that the applicant had not complied with that condition the Tribunal must consider whether the visa should be cancelled.

CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

1. 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 in his evidence today, the matters raised by the applicant in correspondence or in material provided to the Tribunal prior to today that the Tribunal has considered closely, and also matters in the Department’s Procedures and Advice Manual version 3 ‘General visa cancellation powers’.

2. The Tribunal has before it as evidence on today’s application, the file of the Department and specifically the information within it in relation to the Notice of Intention to Consider Cancellation and the applicant’s response to that Notice of Intention to Consider Cancellation.  Additionally, the Tribunal has before it the Department’s decision and the Notification of Decision that were provided to the Tribunal by the applicant with his application for review.

3. Additionally, the Tribunal has had regard to information provided to it by the applicant, being medical certificates and medical information in relation to the applicant’s brother-in-law who has a significant illness, and also information being an email from the applicant’s education provider in 2017 indicating the applicant’s payment due on 27 February 2017 was overdue.  Unfortunately there is no date appended to that email, but it is a matter to which the Tribunal has had regard and is germane to the Tribunal’s decision in this respect. Additionally, the Tribunal has had regard to the Confirmation of Enrolment provided by the applicant. 

4. The applicant’s evidence today is that his failure to remain enrolled occurred in circumstances where he was, firstly unaware that he was not enrolled because he had not received any information from his education provider that his electronic confirmation of enrolment had been cancelled; and secondly, he was at the time in a serious personal situation in that his now wife’s (then fiancé’s) brother was suffering significantly and had health problems that required assistance from the applicant personally.

5. Although it does appear the applicant, on the Tribunal’s consideration of the evidence, failed to pay significant or proper attention to his enrolment, the Tribunal does not weigh that consideration significantly against the applicant. 

6. The applicant did however have control over the enrolment and his failure to comply whilst the visa was not cancelled was a period of approximately five months and that is significant.  However, as the Tribunal accepts the applicant’s explanation for that failure to remain enrolled, the Tribunal does not weigh that factor in favour of cancellation.

7. The purpose of the visa holder’s travel to and stay in Australia was to study and although the applicant has not been enrolled since January 2017 he has told the Tribunal and the Tribunal accepts, he has continued to study personally in the same area although not in a registered course of study.

8. The failure of the applicant to remain enrolled has however meant that he was not able to continue to achieve the purpose of his travel to and stay in Australia and the Tribunal weighs that factor in favour of cancellation of the visa.

9. Other than the failure to comply with condition 8202, the Tribunal has no information before it and there is no suggestion that the applicant has failed to comply with any other condition of the visa.  The Tribunal weighs the applicant’s failure to comply with condition 8202 in favour of cancelling the visa but weighs the applicant’s compliance with the remaining conditions of his favour of not cancelling the visa.

10. I have already dealt with the circumstances in which the ground for cancellation arose and have indicated that I weigh those slightly in favour of cancelling the visa but not significantly. 

11. The applicant’s past and present conduct towards the department: there is no information before the Tribunal and there is certainly no information within the Department’s file to suggest that the applicant has behaved in a manner that was otherwise than appropriate.  The Tribunal weighs this factor in favour of not cancelling the visa.

12. The applicant’s evidence to the Tribunal is that there are no persons who are dependent visa holders to his visa.  Accordingly there will be no consequential cancellations under section 140 of the Act.  The Tribunal weighs this in favour of cancelling the visa.

13. The mandatory legal consequences, including a three year exclusion, the Public Interest Criterion 4103, section 48 of the Act, the possibility of becoming an unlawful non-citizen and immediate detention without a bridging visa, all of these matters have been canvassed in the course of today’s hearing with the applicant.  Having canvassed them all with the applicant the Tribunal weighs these and favours slightly in favour of not cancelling the visa.

14. The applicant is presently in Australia lawfully on a bridging visa and so would not be liable to immediate detention or removal under 189 and/or 198 of the Act.  The Tribunal weighs that consideration slightly in favour of cancellation. 

15. The three year exclusion and public interest criterion and the extremely limited types of visas for which the applicant could apply onshore - these are matters that the Tribunal has considered and weigh in favour of not cancelling the visa.

16. In terms of international obligations, including non-refoulement, and best interests of the children as a primary consideration, the Tribunal has considered these matters and also the degree of hardship that may be caused, financial, psychological, and emotional or other hardship as matters that impact upon each other.

17. The applicant’s evidence, which the Tribunal accepts, is that he is essentially the male head of the household he currently lives within.  He is married legally from January of 2019, and he lives with his wife’s mother and the three brothers of his wife, two of whom are both younger than 18 and are for the purposes of the Tribunal’s consideration are Australian and minors.  The third of the wife’s brothers is a young man who has just turned 19, who has significant health problems.  The applicant and his wife, and beforehand fiancée, and mother have been living together as a family unit with the three brothers for a period of four years.

18. During that four year period, the health of the brother-in-law who has significant health problems has been a major issue and one of the issues going to the applicant‘s failure to remain enrolled.  The unwell brother has now had a period of treatment for his illness and part of the applicant’s household duties has been assistance with that treatment. 

19. It cannot be gainsaid that the stability of the household and the stability of that brother’s health are intertwined. 

20. It is the Tribunal’s finding that, on the basis of the evidence before it, which includes medical evidence as to the younger brother’s health, and by younger brother I mean the brother who is sick and now aged 19, that, were the applicant’s visa to be cancelled and the applicant required to return to Vietnam, that would significantly destabilise the household. The consequences of that destabilisation on the health of the ill brother cannot be stated as they were matters of prediction – but - the ongoing stable and continued environment that the unwell brother has had the opportunity now to be treated in and to be successfully moving forward and I understand he has recently obtained admittance to university on the applicant’s evidence, then the effect on that brother could only be considered to be not positive.

21. Additionally, there are the two younger brothers who are both minors who see the applicant, on the applicant’s evidence and as I understand as put before the Tribunal, as a male role model and a head of family culturally speaking.  The removal of the applicant from that position and the consequential effect on those two young men who, as I have said are both minors, are matters that weigh heavily in favour of not cancelling the visa.  Given that they are both minors, the Tribunal weighs that factor most substantially in its consideration.

22. The applicant has also informed the Tribunal he will within a seven day period, obtain enrolment, a current offer of enrolment, into a course and will resume his study within that time.  The Tribunal accepts that undertaking, and considers that a very important matter that weighs in favour of not cancelling the visa.

23. Considering the circumstances as a whole, although the applicant’s explanation as to why he did not maintain his enrolment is not particularly satisfactory, the consequences of cancelling the applicant’s visa are significant and substantial and extend far beyond personal consequences to the applicant himself.  The applicant has provided his undertaking to the Tribunal to reverse his unenrolled status and to continue to study.

24. On those bases, the Tribunal considers that, overall, the factors weighing in favour of cancelling the visa are outweighed by the factors weighing in favour of not cancelling the visa.  Accordingly, the Tribunal concludes the visa should not be cancelled and it is on that basis that the Tribunal has decided to set aside the decision under review and substitute a decision to not cancel the applicant’s subclass 573 higher education sector visa.

25. Apart from all necessary corrections to the specific references I made to the provisions of the Act and any necessary corrections to the judgment in terms of readability, grammar, and to bring it in line should I have misplaced any words, that is my decision.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Lynda Young
Member