Tran (Migration)

[2019] AATA 2405

Tran (Migration) [2019] AATA 2405 (11 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nguyen Hoang Quan Tran

CASE NUMBER:  1700744

HOME AFFAIRS REFERENCE(S):           BCC2016/3918548

MEMBER:Melissa McAdam

DATE:11 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 April 2019 at 2:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 (Higher Education Sector) – breach of condition – not enrolled in registered course – postponement of studies – pursue studies and achieve academic qualifications – family issues  affected ability to attend class or concentrate upon studies – academic history warrants providing with a final opportunity to complete his Bachelor degree – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 January 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 s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with Condition 8202 of his visa in that he was not enrolled in a registered course.

3. On 23 December 2016 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his Student visa, inviting him to comment on a possible breach of condition 8202, which required him to be enrolled in a registered course. The delegate wrote that the applicant appeared to have not been enrolled in  a registered course of study since 13 April 2016.

4. On 4 January 2017 the applicant sent a message by email to the Department  stating that he could not provide a response to the NOICC within the time required and seeking an extension of time to submit his response. 

5. The Department delegate granted the applicant an extension of five working days, to 11 January 2017, to provide a response.

6. The applicant provided a written response to the NOICC by email just after midnight on 12 January 2017. The following is a summary of the response:

   a.In the period 2014-2015 the applicant’s study was heavily affected by personal problems.  He failed most of the subjects in which he was enrolled, so the university “postponed” his study.

   b.He was advised to stop studying for two years and to enrol again at the end of 2017 or to try to appeal the university’s decision. He appealed the university’s decision but was rejected.

   c.He did not receive any information that he was no longer a student.  He did not receive any advice how his circumstances would affect his visa. He had a misunderstanding that his visa condition would not be changed. 

   d.He now realises it is unlikely he can defend the ground for cancellation.  He is deeply sorry for his mistake. He would like another chance to be able to continue his studies.  He believes Australia is the best place to study.

   e.He has completed more than half his degree and if he has to leave his study plan will be disrupted. He will not have a completed degree and this will affect his future career and job applications.

   f.When he received the NOICC he immediately contacted his university. A university officer advised him to make another appeal but the process would take time. The applicant is now gathering the necessary information to prepare his appeal.  He attached the written advice he received from the university officer.

   g.The reason he failed so many subjects was because he was under extreme stress. His grandmother passed away and his parents’ marriage was in a very bad state. After a year’s break from study he is confident he can study well again.

   h.He has been studying in Australia for almost eight years and has always had appropriate and well-mannered behaviour.

   i.He wants to work in Australia and needs to complete his degree to be able to do this.

   j.He understands the ground for the cancellation is clear.

   k.He attached his medical record, the advice from a Macquarie University Student Advocacy Adviser, and his Macquarie University Student Record.

   Delegate’s Decision

7. The applicant submitted a copy of the Delegate’s decision to the Tribunal.

8. The Delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course.  The delegate found that the applicant has not been enrolled in a registered course of study since 13 April 2016.

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

   Information to the Tribunal

10. According to the applicant’s Movement Record he holds a Bridging Visa E without any condition restricting study.

11. On 12 May 2018 the applicant’s Agent informed the Tribunal that the applicant was continuing his studies in an Advanced Diploma of Accounting from 9 April 2018.  She attached a CoE to confirm the applicant’s enrolment.

12. The applicant’s PRISMS record indicate that he commenced study in an Advanced Diploma of Accounting on 9 April 2018, to be completed by 15 March 2019.

13. On 5 March 2019 the applicant’s Agent submitted the following documents to the Tribunal:

    i.A certificate of completion for the English Preparation Program in June 2010.

    ii.A certificate of completion for University Foundation Studies in August 2011.

    iii.A diploma of Commerce completion certificate dated 10 April 2013.

    iv.The applicant’s academic results from the Sydney Institute of Business and Technology between 2011 and 2012.

    v.The applicant’s academic transcript for Bachelor of Commerce Studies at Macquarie University, issued in May 2014.

    vi.A letter of offer for a Diploma of Marketing and Communication at Clarendon Business College, dated 20 March 2017.

    vii.A CoE for an Advanced Diploma of Accounting at Clarendon Business College, dated 17 April 2018.

    viii.An Application to Macquarie University for study in a  Bachelor of Commerce Professional Accounting.

    ix.Statutory Declaration by the applicant. In the declaration he states that his Subclass 573 visa had an expiry date of 15 March 2017.  He completed his Foundation course in Sydney in August 2011. He completed a Diploma of Commerce in April 2013. He passed his first year of study in a Bachelor of Commerce at Macquarie University. In 2014 he did not pass his subjects because his grandmother died and his parents were having problems in their marriage. In 2015 the university suspended him from studies for two years. He appealed unsuccessfully. He needs to complete eight more subjects to complete his Bachelor of Commerce degree, so one more year of study.  He did not realise he should be continuing to study to maintain his Student visa. He did not complete the Diploma of Marketing and Communication Course that he commenced in April 2017 because he was not interested in marketing. He then completed four subjects of an Advanced Diploma of Accounting from April 2018 and then stopped his studies in the course. In February 2019 he applied for a Bachelor of Commerce course at Macquarie University.  His application is being processed. He wants to complete his Bachelor of Commerce course. This will take 12 – 18 months.  He has resolved his personal problems.  He is the only child in his family and his parents want him to complete his studies here. It will cause them distress and ill-health if he doesn’t.  His future career will be better if he completes this studies.  He is in a de facto relationship with a woman on a subclass 485 visa which expires in January 2020. If he has to depart Australia he will be separated from his de facto.  He has been of good behaviour and responsive to the Department’s requests.

    Tribunal Hearing

14. The applicant appeared before the Tribunal on 28 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The following is a summary of the information provided by the applicant at the hearing:

    a.He confirmed that his Student visa was due to expire in March 2017.

    b.He confirmed that he was not enrolled in a registered course of study from around mid- 2016.  This was because he did not perform well in his course at Macquarie University and the university suspended him for two years. He did not know that he should find another course to enrol in to maintain his visa. It was his mistake.

    c.When he arrived in Australia he was shy and had difficulty starting a new life here. He tried hard in his first few years and completed some study.  However in 2014 he heard his grandmother passed away.  His parents were also having problems in their marriage. He was stressed and upset because he could not attend his grandmother’s funeral so he failed subjects in his course.

    d.He cannot remember exactly when his grandmother passed away. She had been ill with diabetes and was half paralysed from a stroke she suffered in 2011.

    e.His grandmother’s funeral was arranged for just four or five days after her death. He also had exams to sit.  So he could not make it to Vietnam for her funeral.  His grandmother’s death and his parents’ issues affected the applicant so that he could not study. His parents often argue and there is a physical issue between them as well. Sometimes when they argued his father would hit his mother with a broom.  When his mother could not control her temper she would use a stick to hit his father. Now they just stop talking to each other when they argue, so it is better that way.

    f.They did not divorce because of him.  When he came to Australia their situation became worse.

    g.These problems won’t prevent him from studying now. He discusses his problems and talks with friends and family members who help him to reduce his stress and improve his well-being. He has a girlfriend here who helps him.  He realises his study has an impact upon his parents as well. He speaks with his maternal cousin in Vietnam. She lives close to his parents’ home. She knows about their marriage difficulties. Since his visa cancellation his parents have realised that their problems are affecting the applicant’s study so they are trying to be better in their relationship.  His cousin tells him that their situation is getting better and they are improving their behaviour.

    h.The applicant has not had any involvement with the police in Australia.  He has not been charged with any offences.  He received a traffic fine for driving through a red light, but this is all.

    i.He now wants to complete his Bachelor of Commerce degree at Macquarie University.

    j.He commenced a Diploma of Marketing and Communication Course that in April 2017.  He passed two subjects but also failed quite a few subjects.  He attended class but did not do well in his assignments. His parents found out his visa was cancelled and were very angry. They stopped providing financial support to him so he had to stop studying so he could work to support himself.  He worked 20 hours a week in the hotel industry as a housekeeper.  He is currently working at the Marriott Hotel.

    k.He commenced an Advanced Diploma of Accounting in April 2018. He completed four subjects and failed four. He failed these subjects because he was waiting for his Tribunal hearing and was unsure of his future. This caused him stress so he could not concentrate on his studies.  A doctor at Macquarie University is helping him to manage his stress. His girlfriend also supports him mentally and emotionally.  He began living with her after his visa was cancelled.

    l.The Tribunal put to the applicant that a Bachelor degree was likely to contain harder subjects than the diploma course subjects he failed. He responded that his parents have agreed to resume financially supporting him if he re-enrols in a bachelor degree.  He will therefore be able to give up his work and concentrate on his studies.  He will try his best to complete the degree.  He is also more mature now than he was in the past.

    m.He did not return to Vietnam to study there because the hopes and dreams of his parents that he will obtain an overseas degree will be shattered. In Vietnam it is traditional for people to be proud of overseas study.

    n.His parents were paying his living expenses in Australia until his visa was cancelled.  They did not pay his tuition fees. Their employer paid these. The applicant’s parents live with their employer in his house. The applicant’s mother is his housekeeper and the applicant’s father is his driver. The house is in District Two in Ho Chi Minh city.  Their employer is an Englishman and the applicant has known him since he was little. The applicant calls him ‘uncle’.  His name is Dominic Scriven. He is the CEO of an investment fund in Vietnam. He also owns a resort on Phu Quoc Island.

    o.Mr Scriven does not expect the applicant to pay him back for the money he is spending on the applicant’s education in Australia. Perhaps the applicant will work in Mr Scriven’s business in Vietnam in the financial section, when he completes his study in Australia.

    p.In February 2019 the applicant applied for a Bachelor of Commerce course at Macquarie University. It is a two year course but the applicant is hoping to get credit for the subjects he has already completed so that he will only need to do eight more subjects to complete the degree. He can then do that in one year. 

    q.His enrolment at Macquarie University has not been accepted yet because he does not have a Student Visa.  If his enrolment is accepted he will begin study there in July this year.  He studied accounting last year so that he could complete subjects he may get credit for at Macquarie University.

    r.The Tribunal put to the applicant that as the expiry date on his Student visa has passed, revoking the cancellation will not mean that he will have a new Student visa. He would have to apply for another Student visa in Australia.  Given his poor study record he may not be granted a new Student visa.  He responded that he understood this but he hoped he would be able to obtain a new Student visa because he could show that he only needed the visa for one year to complete his Bachelor course.

    s.He wants to continue to study commerce and accounting because he likes statistics and financial reports and learning about how to invest and run a business.  He has passed subjects in Australia such as ‘Principles of Accounting’, ‘Micro-Finance’, ‘Applied Finance’ and ‘International Money’.  If his enrolment at Macquarie University is accepted he will attend lectures and read books in his field. He knows it is his last chance so he will try his best.

    t.He will submit evidence to the Tribunal that his parents’ employer has been paying his course fees in Australia. Mr Scriven would send the money to a contact in Australia who would make the course fee payments. Mr Scriven would then email the applicant to confirm the payments were made. The applicant will also submit his bank account records since 2014 to show the transfers from his parents.

    Post-Hearing Submission

15. On 11 April 2019 the applicant submitted copies of the following documents to the Tribunal:

    i.Numerous emails between Mr Dominic Scriven and the applicant, in Vietnamese, with some references to ‘Letters of Offer’, ‘COE’s, ‘payment forms’, ‘Intl BCOM Pre 2013 Students’ and bank account details in English.

    ii.A Statement of Account from Macquarie University, in the applicant’s name, showing over a dozen fees charged and payments received between 2013 and 2015.

    iii.Over 100 Commonwealth Bank Account statements for an account held by the applicant, showing numerous transfers into the applicant’s account, over the past few years.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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?

17. 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).

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

19. The applicant has admitted he was not enrolled in a registered course of study from April 2016 until April 2018.  The evidence from the Department’s PRISMS records also confirm that the applicant was not enrolled in a registered course of study in this period of time.  Accordingly, the Tribunal finds that the applicant did not comply with condition 8202(2). 

    Consideration of the discretion to cancel the visa

20. 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 purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to remain in Australia.

21. The applicant has provided information that he came to Australia to study. He has completed several courses of study and passed subjects in other courses of study.  He has provided evidence, which the Tribunal accepts, that he has continued unsuccessfully to try to study and to find appropriate courses.  He has also provided oral and documentary evidence that he has applied for enrolment in a Bachelor degree at Macquarie University. On the basis of this information the Tribunal finds that the applicant has continued to remain in Australia in order to try to pursue studies and to achieve an academic qualification. The Tribunal therefore gives this consideration some weight in the applicant’s favour.

    The extent of compliance with visa conditions

22. There is nothing before the Tribunal to indicate that the applicant has breached other conditions on his visa. The Tribunal expects that a visa holder will generally adhere to all the conditions of his or her visa. In this case the applicant’s breach is a significant one.  As such the Tribunal gives limited weight in the applicant’s favour to the fact that there appears to be no additional breaches.

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

23. The applicant has submitted that his parents have incurred expense in funding his stay in Australia and that they will be caused distress and ill-health if he doesn’t complete his studies. He also states that his job prospects will be diminished if he does obtain a qualification in Australia.  He will also experience hardship if he has to leave Australia and be separated from his girlfriend here.

1. The Tribunal accepts the applicant’s parents will be distressed if his visa remains cancelled and that he will have less opportunity to find employment.  The Tribunal also accepts the applicant and his girlfriend will be sad to be separated. However the Tribunal does not view these matters as particularly serious and gives them just a little weight in the applicant’s favour.

   The circumstances in which the ground of cancellation arose.

2. The applicant has explained in his written responses and his oral evidence that he gave up his studies because family issues caused him serious emotional distress which badly affecting his ability to study.

3. The Tribunal accepts that the problems outlined by the applicant would have been quite distressing for him and would adversely affect his ability to attend class or concentrate upon his studies. The Tribunal therefore gives these matters some weight in the applicant’s favour.

   Past and present conduct of the visa holder towards the Department

4. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department in his dealings with it, since receiving the Notice of Intention to Cancel his visa.  

5. The applicant has also cooperated with the Tribunal in providing information and responding to the Tribunal’s queries and invitations.

6. The Tribunal gives this consideration some 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

7. The Tribunal considers it unlikely that the visa applicant would be detained if his visa remains cancelled.  The Tribunal notes he will have a time limited period in which he can leave the country.  The Tribunal does accept that the applicant will be temporarily barred from being granted a further visa to Australia.  However this is due to the operation of the law in Australia and is a result of the applicant’s own actions. The Tribunal gives this consideration only a little weight in the applicant’s favour.

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

8. There is nothing before the Tribunal to indicate there are international obligations to consider.

   Any other relevant matters

9. The applicant impressed the Tribunal with his acknowledgement of his past mistakes and his  attempts to resume and continue his studies. 

10. The Tribunal notes that the applicant’s Student visa was due to cease in March 2017 and that this date has well passed. If his Student visa cancellation is set aside he would have to apply for a further visa in order to lawfully stay in Australia. For him to continue his studies he will have to apply for and meet the criteria for the grant of the new Subclass 500 Student visa.  He will then be required to demonstrate that he is willing to study and has appropriate enrolments.  Having considered the evidence before it, the Tribunal accepts that the applicant genuinely wishes to complete his studies in Australia.  The Tribunal accepts that the applicant’s parents and his benefactor, their employer, have the funds to enable the applicant to complete a degree in Australia.  In the Tribunal’s view, the circumstances of the applicant’s stay and academic history in Australia warrant providing him with a final opportunity to complete his Bachelor degree.

11. The considerations as set out above largely weigh in favour of the Tribunal exercising its discretion to revoke the cancellation, and allowing the applicant the opportunity to apply again for a Student visa.

12. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Melissa McAdam
    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.