Tran (Migration)

[2019] AATA 2755

Tran (Migration) [2019] AATA 2755 (1 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ngoc Lan Anh Tran
Mr Thanh Huan Luu
Miss Grace Luu

CASE NUMBER:  1832984

HOME AFFAIRS REFERENCE(S):           BCC2018/3820158

MEMBER:Adrienne Millbank

DATE:1 April 2019

PLACE OF DECISION:  Brisbane

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

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

Statement made on 01 April 2019 at 12:18pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – birth of daughter – miscarriage – financial stress – pending birth of second child – no academic progress in several years – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140, 348, 376, 359AA
Migration Regulations 1994, Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 November 2018 made by a Delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a 28 year old Vietnamese national who first arrived in Australia on 1 July 2012 a Higher Education Student (Subclass 573) visa. She was enrolled in a Bachelor of Business degree course.

3. The Delegate cancelled the visa on the basis that the applicant had not complied with condition 8202 attached to her visa, specifically paragraph 8202(a). The Delegate found the purpose for which the visa was granted ended on 9 November 2016, the date the visa holder’s enrolment in the Higher Education Sector course was cancelled. The Delegate found, based on the applicant’s Provider Registration and International Student Management System records that she had not been enrolled in a registered course of study for a period of over 1 year and 11 months.

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

5. 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.

6. The applicant appeared before the Tribunal on 22 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, a dependent on her Student visa. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

8. 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

9. 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?

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. The applicant’s PRISMS records show that her last enrolment, in a Bachelor of Business course, was cancelled on 9 November 2016, for the stated reason of non-payment of tuition fees. At hearing, the applicant confirmed that her last enrolment was cancelled on 9 November 2016, and that she has not been enrolled in a relevant course of study since this date.

12. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2). The ground for cancellation therefore exists.

    Consideration of the discretion to cancel the visa

13. 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’.

14. At hearing the Tribunal gave a copy of a s.376 certificate to the applicant and advised that it had determined it to be valid because it protected the identity of an informant who had ‘dobbed-in’ the applicant for working and not studying while on a Student visa, and who had requested to remain anonymous. The applicant was offered an adjournment and invited to comment on the validity of the certificate. She did not seek an adjournment and advised that she did not question its validity.

15. Adopting the procedures in s.359AA of the Act, the Tribunal informed the applicant that it had information that would lead or could contribute, subject to her comments in response, to the decision under review being affirmed. The Tribunal advised that this information comprised her PRISMS records and the information in the dob-in. The Tribunal advised the applicant that the information was relevant because it indicated that she was not a genuine student; that she was using the Student visa program to maintain residence and work in this country. The applicant was offered but declined an adjournment to consider her response.

16. The applicant’s PRISMS records show that since 2012 she has enrolled, in some cases several times, in the following courses: Diploma of Hotel Management; Diploma of Commerce; Bachelor of Business; and Diploma of Hospitality. At hearing the applicant confirmed that she had not successfully completed any of her enrolled courses, and has obtained no qualifications in nearly seven years in this country. She claimed nevertheless that her purpose in coming to Australia was genuinely to study and obtain qualifications in business and hospitality. She described how she lost her ‘incentive’ to study and was unable to concentrate following the birth of her daughter on 27 January 2016, a subsequent miscarriage, and because of financial stress. She advised that she received financial support from her family in Vietnam during her first few years in Australia but that her family in Vietnam could not afford to support her beyond the time of the birth of her daughter.

17. The applicant did not dispute the dob-in apart from to claim that when she was working and not studying she worked for only around 15 hours a week, assisting her husband, an IT technician and sub-contractor on the roll-out of the National Broadband Network, to talk with clients. She acknowledged that she and her husband established a business, but claimed that her involvement was limited because she had to care for her daughter. She acknowledged that she was not studying at the time of the dob-in, in October 2018.

18. The applicant claimed that her purpose remains to obtain a Bachelor of Business with view to a career in the field of hospitality. She claimed that she is newly motivated by the goal of securing her children’s future. She provided medical evidence that she suffered a miscarriage and a letter from her General Practitioner certifying that she is pregnant again with an estimated date of delivery of 8 September 2019. The Tribunal has considered this evidence and notes that the applicant did not claim, and no medical advice or evidence was provided, that there is any medical reason why the applicant cannot travel and have her baby in Vietnam. The Tribunal does not find that the medical evidence weighs in her favour.

19. The Tribunal asked the applicant about her long-term plans. She advised that it is her intention, if her visa is restored, to return to study during the remainder of her pregnancy, and following the completion of her studies, to remain in Australia. She gave as her reason for this intention this country’s better education opportunities and health services. The applicant said that she would seek to remain permanently by applying for a skilled work visa. She advised that she and her husband have become used to living in Australia, and their daughter was born here.

20. The applicant and her husband were forthright and open at hearing; the Tribunal found them credible witnesses and sympathised with their circumstances. The Tribunal accepts the testimony provided by the applicant and her husband that she worked, while not attending classes, for only around 15 hours a week, and that at the time the family was under considerable financial and emotional stress. The Tribunal notes however that the applicant does not genuinely intend to stay temporarily, and that the purpose of a Student visa is not to enable a person to have and raise children in this country.

21. The Tribunal considers the purpose of the applicant’s stay in Australia after starting her family has not been to study; that from the time of her first pregnancy she has had neither the motivation nor the financial capacity. The Tribunal notes that the applicant has been in breach of her visa condition for a considerable period of time. The Tribunal considers that the applicant’s changed circumstances would have been the reason for her to return home with her family, and does not accept that these circumstances have justified the applicant breaching the condition of her visa to be enrolled in a course of study.

22. The applicant stated that if her visa is not restored she will return to her Vietnam, work for a while in her family’s eatery, and possibly study accountancy in her home country once the family is re-established. The applicant’s husband advised that he obtained a Diploma in Information Technology and worked in Vietnam before coming to Australia with his wife. The Tribunal accepts that the applicant wants her children to be educated in Australia and to have access to this country’s health system, but does not find that significant hardship would be caused to the family by their return to their home country.

23. The Tribunal accepts that the applicant sought and was granted one deferral from her course provider on the birth of her daughter. The applicant confirmed at hearing however that she sought no further deferrals; that she simply stopped attending classes when she lost the motivation to study and could not pay the tuition fees. The Tribunal accepts that the applicant responded to her Notice of Intention to Consider Cancellation. The applicant confirmed at hearing however that she at no time contacted the Department to obtain advice regarding the implications of her changed circumstances for her visa and stay in Australia.

24. The Tribunal has considered that if the applicant’s visa is cancelled, the visas of her husband and daughter will also be cancelled. There is no information before the Tribunal to indicate that the family would not be granted Bridging E visas while organising their departure. The Tribunal has further considered that if her visa is cancelled for breach of condition 8202 the applicant might have to wait some time before being granted another visa to enter Australia. The Tribunal is satisfied that this is the intended consequence of a breach of the condition such as in this case.

25. There is no information before the Tribunal and the applicant did not claim that relevant international agreements would be breached by the cancellation. The Tribunal considers that the best interest of the applicant’s young daughter is to remain with her mother and father and return with them to Vietnam

26. No other relevant matters were raised by the applicant or otherwise before the Tribunal.

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

    DECISION

28. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.

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

    Adrienne Millbank
    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.