Tran (Migration)

[2019] AATA 2420

Tran (Migration) [2019] AATA 2420 (30 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Quynh Nhu Tran
Mr Van Tuan Vu
Miss Luciana Vu

CASE NUMBER:  1827457

HOME AFFAIRS REFERENCE(S):           BCC2018/1078740

MEMBER:Damian Creedon

DATE:30 June 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 30 June 2019 at 1:25pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances in which the non-compliance occurred – satisfactory academic progress – pregnancy – deferral granted – acted reasonably in the circumstances – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
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 17 September 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicants appeared before the Tribunal on 14 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. At the conclusion of the hearing the applicant sought and was granted seven days within which to provide further submissions to the Tribunal.  Further submissions were received within that time period and they have been considered by the Tribunal in reaching its decision.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

Did the applicant comply with Condition 8202?

1. Condition 8202, as it applies in this case, is set out in the attachment to this decision. On 25 November 2016 the applicant was granted a Student (Class TU Subclass 500) visa with condition 8202 attached.  Condition 8202, as it applies in this case, is set out in the attachment to this decision.  Relevantly, condition 8202(2)(a) requires a primary student visa holder to maintain enrolment in a full-time registered course, making it clear that this is a continuing requirement. 

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

3. The delegate’s decision record, a copy of which the applicant provided to the Tribunal with her application, notes the following relevant information:

   The visa holder’s Student visa was granted subject to condition 8202. The visa holder has not been enrolled in a registered course since 04 September 2017 and no longer meets the requirement of subclause 8202(2)(a). Therefore, the visa holder has not complied with condition 8202 of their Student visa. I am satisfied there is a ground for cancellation under section 116(1)(b) of the Migration Act 1958.

4. The applicant disputed the delegate’s decision in this respect, submitting instead that she remained enrolled in a registered course at all times and was not therefore in breach of condition 8202 of her visa.

5. A review of the applicant’s Provider Registration and International Student Management System (PRISMS) record shows that the applicant was enrolled in a Bachelor of Medical Science which she had commenced on 22 February 2016 and was due to complete on 31 December 2018.  PRISMS also shows that the applicant was granted a deferment of her course of approximately three months from 31 August 2017 to 24 November 2017.  The deferment was granted on compassionate or compelling grounds.

6. Among the materials provided to the Tribunal by the applicant is an email from her then course provider confirming her deferral.  Relevantly, the email contains the following statements:

   Enrolments for Semester 1, 2018 are open in November 2017.  While you are on a deferred status, you will be able to enrol [electronically] for the next teaching period, so please take not of the date enrolments are open.

   Your deferred status will lapse automatically when your intermission finishes, ready to re-commence your studies.

   In line with ESOS requirements your Confirmation of Enrolment (CoE) has been cancelled.  Please contact the Department of Immigration and Border Protection to advise of your current circumstances and future intention, and they can advise how this will impact your Student Visa.

   You are required to apply for a new CoE prior to your return in Semester 1, 2018.

   (Emphasis added.)

7. PRISMS records that the applicant’s deferred status was first recorded on 4 September 2017, being the date cited by the delegate in their decision record as the date from which the applicant was not enrolled in a course of study.  For reasons which will be discussed below the applicant’s next confirmed enrolment in a course of study commenced on 28 January 2019.

8. On the evidence before the Tribunal, the applicant was not enrolled in a course of study for a period of time between 4 September 2017 and 28 January 2019.  Accordingly, the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

1. 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’

Background

1. The applicant is a 26-year-old Vietnamese national who first arrived in Australia on or around 11 February 2012 as the holder of a Student (subclass 572) visa.

2. The applicant’s Provider Registration and International Student Management System (PRISMS) record shows that since her arrival in Australia she has successfully completed the following courses:

Course Name	Date Commenced	Date Completed
General English	13/02/2012	06/07/2012
Certificate III in Aged Care	23/07/2012	14/12/2012
Certificate IV in Preparation for Entry into Nursing	04/02/2013	05/07/2013
Diploma of Nursing (Enrolled / Division 2 Nursing)	29/07/2013	19/12/2014

1. PRISMS also records that the applicant commenced a Bachelor of Health Science on 23 February 2015.  Before completing this course, however, the applicant changed her enrolment, utilising course credits, to a Bachelor of Medical Science that she commenced on 22 February 2016 and was scheduled to complete on 31 December 2018.  The applicant’s evidence is that she is presently enrolled in a Bachelor of Nursing which she commenced on 28 January 2019.

Circumstances in which the ground of cancellation arose.

1. Central to the circumstances in which the ground of cancellation arose is an understanding of the applicant’s personal and study history from her arrival onshore until mid-2017.  The applicant’s evidence to the Tribunal is that during this period she had been progressing steadily in her studies towards her ultimate career goal of qualifying as a nurse.

2. She states that she had completed her preparatory VET courses and had successfully transitioned to Bachelors level study.  She stated that there was a period during her studies in which she contemplated a career more aligned with laboratory-based work[1] after an incident during the practical component of her Diploma of Nursing which affected her confidence and caused her to question her career choice; however, she stated that she has since regained her confidence and is determined to progress to a career in nursing.

   [1] Hence her study for a period of a Bachelor of Health Science and Bachelor of Medial Science.

3. The key event of 2017 causing her to defer her Bachelor of Medical Science was her pregnancy through the first semester of 2017 culminating in the birth of her daughter, the third-named applicant, on 16 October 2017.[2]  The applicant stated to the Tribunal that the period after the birth of her daughter was a challenging one for the young family and that it took some considerable time for the applicant and the second-named applicant to settle into their new roles as parents. 

   [2] The appoicant provided the Tribunal with a birth certificate to this effect.

4. The applicant stated to the effect that she believed at all times that she had remained enrolled as required by her visa conditions.  When asked by the Tribunal why, then, she had not answered the Department’s Notice of Intention to Consider Cancellation (NOICC) dated 8 June 2018, the applicant stated that, as she believed that she was enrolled, she assumed that the email was a scam seeking to obtain her personal details; a type of scam, she claims, that is not unusual among students in her experience.  She states that for this reason she did not give it close consideration and ultimately ignored it.

5. The Tribunal observed the applicant in the delivery of her evidence.  The Tribunal’s assessment is that she did so candidly and honestly.  The Tribunal found the applicant’s consistency in the recounting of these events, and the documentary evidence she provided to corroborate them, persuasive.  The applicant’s pregnancy and the birth of her daughter in October 2017 provide an obvious and reasonable explanation for her decision to defer her studies from 4 September 2017.  It appears from the applicant’s evidence that the young family took some time to settle, thereby distracting the applicant from her studies, and, moreover, her responsibility to properly manage her course and visa obligations and to communicate with the Department. 

6. The evidence before the Tribunal shows that the applicant made steady and consistent academic progress from February 2012 until mid-2017.  The concurrence of the birth of the applicant’s daughter in October 2017 and the interruption to her studies from this time is not, in the Tribunal’s view, mere coincidence.  Whether these events may have been better managed with the benefit of hindsight is a matter of conjecture.  Overall the Tribunal is persuaded that the applicant acted reasonably and in good faith in the circumstances that she found herself in from mid-2017.   The Tribunal places particular weight on this factor in her favour.

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

1. The applicant’s evidence to the Tribunal is that she wishes to continue and complete her studies in Australia up to and including the Bachelor of Nursing that she is presently undertaking.  She stated to the Tribunal that she wishes to pursue a career as a nurse in Vietnam and her choice is to continue her study in Australia.

2. While the Tribunal does not regard this as a “compelling” need, it does disclose a reasonable motive.  In all of the circumstances the Tribunal does not consider that this factor weighs either for or against the applicant.

The extent of compliance with visa conditions

1. The applicant was responsible for a breach pertaining to her visa.  Ultimately it is for the applicant to take personal responsibility for managing her course requirements and visa obligations, including effectively communicating with the Department.  In all of the circumstances, however, the Tribunal gives less weight in this instance to cancelling his visa on account of the applicant’s particular circumstances.

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

1. The Tribunal accepts that the applicant has invested financial resources in furthering her education in Australia.  It was apparent from her submissions that the applicant is focussed on finishing her nursing degree.  She has obtained a number of preliminary qualifications to that end and has amassed course credits from the degree level studies that she has already undertaken here.  The Tribunal’s view is that not continuing her studies in Australia would exact an unreasonable financial and emotional toll on the applicant and her family.

2. In all of the circumstances the Tribunal weighs this factor modestly in the applicant’s favour.

Past and present behaviour of the visa holder towards the department

1. The delegate noted the following in his decision record:

   The visa holder did not provide a response to the Department’s [NOICC]. There is no other information before me relevant to the visa holder’s past behaviour towards the Department. I give this consideration little weight in the visa holder’s favour.

2. In the applicant’s particular circumstances the Tribunal is persuaded that her decision not to respond to the NOICC is not indicative of a reckless or indifferent attitude to the Department, though any confusion she felt as to the authenticity of the document could easily have been resolved through communicating with the Department.

3. Overall the Tribunal agrees with the applicant’s assessment and gives this consideration little weight in the applicant’s favour.

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

1. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.

2. There is nothing to indicate the applicant would not be able to return to Vietnam.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

Whether there would be consequential cancellations under s.140

1. The applicant’s husband, the second-named applicant, and her 18-month old daughter, the third-named applicant, would both have a consequential cancellation in this case.

2. The Tribunal affords this weight in the applicant’s favour.

Whether any international obligations would be breached as a result of the cancellation

1. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

Conclusion

1. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8202 of her visa.  The Tribunal has found however that the circumstances in which the breach occurred were, ultimately, unexpected in their duration and beyond her control.  The Tribunal considers that she acted reasonably in dealing with them as they manifested.   The Tribunal places particular weight on these circumstances in the applicant’s favour and, on balance, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

2. The Tribunal has no jurisdiction in respect of the other applicants.

Damian Creedon

Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (1)          The holder must be enrolled in a full-time course of study or training if the holder is:

   (a)  a Defence student; or

   (b)  a Foreign Affairs student; or

   (c)  a secondary exchange student.

   (2)          A holder not covered by subclause (1):

   (a)  must be enrolled in a full-time registered course; and

   (b)  subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

   (c)  must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i)  the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;  

   (ii)  the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3)  A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a)  is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b)  changes their enrolment to a course at the Australian Qualifications Framework level 9.