Tran (Migration)

[2019] AATA 839

Tran (Migration) [2019] AATA 839 (21 January 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hai Thanh Tran

CASE NUMBER:  1620654

HOME AFFAIRS REFERENCE(S):           BCC2016/3366368

MEMBER:Brendan Darcy

DATE:21 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 January 2019 at 9:49am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of remaining in Australia – credibility issues – 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 29 November 2016 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, a citizen of Vietnam, was not complaint with paragraph 8202(2)(a) of condition 8202 and the grounds for cancelling the visa outweighed the grounds for not cancelling. 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. The applicant appeared before the Tribunal on 7 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. 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

5. 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?

6. 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).

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

8. According the decision record which was submitted as part of this review application, the applicant was granted a Class TU Subclass 573 student visa on 27 August 2013 which was set to expire on 30 August 2017. As discussed in the hearing, the applicant had initially applied for English language courses (General English and for Academic Purposes) at the IIBIT Academy of English and Bachelor of Commerce (Accounting) at the Institute of Business & Information Technology. The applicant submitted completion certificates indicating that he had completed his English language coursework and then cancelled the enrolment for a degree on 5 December 2013.

9. The applicant then enrolled in a Bachelor of Business at Federation University (or the University of Ballarat) on 9 August 2013 and that enrolment in degree had been cancelled on 20 November 2014.

10. Based on his submitted Certificates of Enrolment (CoEs), he applicant later enrolled in an English language course, a Diploma of Marketing and a Bachelor of Business (Marketing) at Cambridge International College on 13 April 2015. The applicant finished the English language course work as well as the diploma but the Bachelor degree had been cancelled in 23 November 2015.

11. The Department issued its Notice of Intention to Consider Cancellation (NOICC) on 17 November 2016 and was invited to respond to the invitation in writing within five working days.

12. The Department did not receive any response.

13. The applicant had subsequently obtained in Certificate III and IV in Commercial Cookery on 11 November 2016 according the delegate’s account of the Provider Registration and International in the decision record but had not been enrolled in a registered course of study since 23 November 2015, as required by condition 8202(2).

14. The delegate further states that while the applicant enrolled on 11 November 2016, the applicant did so in response to contact being made with him by Departmental officers on 7 November 2016.

15. As the delegate was satisfied the applicant had not been in compliance with condition 8202, he or she then proceeded to cancel the applicant’s student visa on 29 November 2016.

16. The applicant applied to have the cancellation decision reviewed by the Tribunal on 6 December 2016.

17. During the scheduled hearing for this review application, the applicant claimed that he asked his education agent to respond to the NOICC and that his English was not strong. The applicant claimed he had been registered in a course at the time of the visa being cancelled but it was pointed out to him by the Tribunal the enrolments were not commensurate to a Subclass 573 student visa which required the applicant to be enrolled continuously in a Bachelor’s or Master’s degree.

18. The Tribunal finds that the applicant had not been enrolled in registered course work between 23 November 2015 and the time of the visa’s cancellation on 6 December 2016 – a period of more than twelve months.

19. 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).

    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’.

21. The submitted a copy of a marriage certificate issued by the relevant authority in the State of Victoria indicating that the applicant had married a female resident of Australia on 12 May 2016. Accompanying this was printed pictures of her with his wife on their wedding day. The applicant claimed the relationship with his wife ended in July 2018.

22. After the hearing, the applicant submitted a number of CoEs about his past enrolments.

    The purpose of the visa holder’s travel to and stay in Australia

23. According to the decision record, the applicant stated his intended purpose of travelling and staying in Australia was study at the time of application for his student visa, However the delegate found the applicant had not been enrolled since 23 November 2015 and did not respond to the NOICC. Consequently the delegate gave little weight to this consideration for not cancelling the visa.

24. During the scheduled hearing, the applicant was asked to explain his purpose for remaining in Australia to Tribunal. The applicant claimed that he loved Australian and its qualifications were the best. The applicant further stated that he wanted to return to Vietnam to apply for jobs with an Australian qualification and earn money. Asked which employment he would seek, the applicant nominated becoming an accountant and added that he wanted to be wealthy. He then said that he found accounting difficult and then wanted to be a cook. The Tribunal asked to account for the gap in not being enrolled in any coursework at all and her enrolment in commercial cookery, the applicant explained that he had no experience in cooking and he got married and needed to cook for his family. The Tribunal pointed out that commercial cookery coursework was not required for home cooking. The applicant then changed his testimony by stating that he wanted to be a cook after he was married.

25. The Tribunal also noted that the applicant had subsequently obtained in Certificate III and IV in Commercial Cookery on 11 November 2016 according the delegate’s account of the Provider Registration and International in the decision record. This strongly indicates to the Tribunal that this late enrolment in commercial cookery had been prompted by the prospect of the applicant’s visa being cancelled.

26. The Tribunal notes there is some academic achievement since he was granted this visa in completing English language and vocational course work.  However the applicant’s testimony about the reasons he wanted to remain in Australia was unpersuasive, involved changing his testimony when challenged with the implausibilities of his claims. The claims were further undermined by the significant period of time of not being enrolled in any coursework and the timing of his enrolment in commercial cookery. There is also the significant concern that the applicant has cancelled all his degree-level course work in the past. The Tribunal does not accept the applicant has any strong desire to be a cook or restaurateur based on his implausible claims and his overall study history indicates he is neither motivated nor capable in completing a Bachelor’s degree for the foreseeable future.

27. The Tribunal finds that the applicant‘s purpose of remaining in Australia is not study. He had not demonstrated any because he is a genuine student who will uphold the conditions imposed on him. Taking all this relevant information into cumulative consideration regarding about the applicant’s purpose to travel to and stay in Australia, the Tribunal accepts that he is a genuine student. It accordingly gives this some weight in favour of the visa not being cancelled.

    The extent of compliance with visa conditions

28. The delegate noted the applicant argued that he was non-compliant with condition 8202 since 23 November 2015 and that the extent of the non-compliance to be considerable. The Tribunal concurs that the extent of the breach – more than twelve months - to be considerable in itself. There is no more evidence before the Tribunal that the applicant had breached any other conditions on his student visa, the Tribunal gives this factor some weight towards the visa being not cancelled.

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

29. The delegate’s decision accepted that there may be some financial and other hardships as a result of the cancellation, despite the lack of detail in his written NOICC response.

30. During the scheduled hearing, the applicant elaborated that he was no longer married and that he would like to gain a qualification in cookery to set up a restaurant in Vietnam and that it was required to make a valuable first impression when seeking work in Vietnam. As discussed in the Tribunal, this appeared to be an exaggeration about the prestige of any qualification in working in cookery. The applicant was asked to nominate any other hardships; to which he replied ‘nothing’.  Later in the hearing, the applicant as the only son of his parents expressed his concerns about disappointing them in not achieving a degree – which the Tribunal accepts to be credible.

31. While the Tribunal accepts the applicant will face some difficulties in finding work when he returns to Vietnam and face disappointing his parents, these hardships is neither severe nor significant. The Tribunal gives these hardship considerations little weight towards the visa not being reinstated.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

32. According to the decision record, the applicant did not provided a written explanation that he was not meeting condition 8202 attached to his student visa.

33. At the scheduled hearing, the applicant explained that while he was engaged in 2015, he encountered difficulties in caring for his fiancée and her daughter. He said his fiancée suffered difficulties arising from his fiancée’s abuse of alcohol and because of her earlier failed marriage ending in divorce. The applicant claimed that at the time he thought he would help his overcome the situation by spending more time with her and her daughter as a career and not studying. He added these difficulties extended after his wedding in May 2016. The Tribunal asked if this was case, how was he and his wife financially able to afford the wedding as well as living expenses. The applicant responded that his wife relied on income support and his parents paid for the wedding. The Tribunal asked if his parents attended the wedding given they paid it, he said that had not as they did not have passports. The Tribunal said that his parents did not attend such a significant event for their only son based on such a minor administrative matter that is easily overcome. The Tribunal asked if there was any medical or other evidence his wife such problems or that he was a full-time carer. The applicant said there was not. The Tribunal asked if the applicant was able to provide a third party statement given the breakdown of the marriage had not been embittered; to which the applicant replied ‘no’. The applicant was asked about the size of the reception and his and his fiancée’s capacity to organise the reception; to which the applicant responded that it was easy to organise.

34. Based on the lack of documentary and medical evidence or even a third party statement (which he unreasonably refused to submit), there is no corroborative evidence to support the applicant’s otherwise improbable claims that he was a full-time career who organised a wedding and reception and whose parents paid for the event. The Tribunal finds that the claims are so weakly argued with a number of implausible elements that the applicant had contrived these claimed circumstances for the purposes of having his cancelled visa reinstated. For these reasons, the Tribunal does not accept that there were any extenuating circumstances beyond the applicant’s control to credibly explain his significant non-compliance with condition 8202. Accordingly the Tribunal gives the evidence no weight towards the visa not being cancelled.

    Past and present conduct of the visa holder towards the Department

35. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department – other than the applicant’s non-responsiveness to an issued NOICC. During the hearing, the applicant claimed his education agent had undertaken to respond. As discussed in the hearing, the Tribunal found that lacking credibility as education agents who are not migration agents are unable to provide migration advice and assistance.

36. The Tribunal gives this consideration little weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

37. Not relevant.

    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

38. The Tribunal raised the delegate’s findings regarding the mandatory legal consequences of this visa remaining cancelled. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia, arising from the operation of section 48 in limiting the applicant in applying for other visas and may have to depart or be detained or even forcibly returned. The applicant may also be barred from returning to Australia for three years.  The applicant stated that he would be adversely affected by not being able to study in Australia but acknowledged he could study in Vietnam, although he further stated the qualification was better when conferred by an Australian education provider. The Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

39. As the applicant is not married and has no dependents (his ex-wife had a child from a previous relationship), there is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

40. The applicant does not have any dependents or a spouse and he did not advance any claims he faces any serious or significant harm if he returned to Vietnam. As the applicant has not applied for a protection visa, there is no evidence before the Tribunal that this consideration is relevant under the circumstances.  Accordingly it gives this factor no weight.

    Any other relevant considerations

41. As noted about, the applicant presented a number of specific claims lacking in plausibility which he could not or unreasonably refused to corroborate with documentary, medical evidence or third party statements and that the Tribunal made findings that the applicant had contrived specific claims.  Overall the Tribunal finds that the applicant had not been a reliable witness lacking in general credibility during this review application indicating he is not capable of upholding the conditions imposed on his for a student visa, if it were reinstated. Accordingly the Tribunal places considerable weight on this adverse credibility finding in favour of the visa remaining cancelled.

    Conclusion

42. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

43. When cumulatively considering the Tribunal’s findings in this review application, the extent of the applicant’s breach of condition 8202 has been significant and has not presented credible claims that he is a genuine student who will uphold all of the conditions imposed on him if this student visa was reinstated. Neither does the applicant have any credible extenuating circumstances beyond his control leading to that breach; nor any convincing reasons that he would face severe or significant hardship if his student visa was not reinstated.  

44. Having considered all the evidence and arguments, the Tribunal makes the cumulative finding that the significant factors towards the visa remaining cancelled are not outweighed by the factors in favour of the visa being cancelled.

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

    DECISION

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

    Brendan Darcy
    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.