Tran (Migration)

[2018] AATA 5472

Tran (Migration) [2018] AATA 5472 (19 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Hong Oanh TRAN

CASE NUMBER:  1621696

HOME AFFAIRS REFERENCE(S):           BCC2016/3806025

MEMBER:Mr S Norman

DATE:19 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 November 2018 at 3:00pm

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 – present intention to remain in Australia – degree of hardship – health issues – employment history – 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 15 December 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). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant breached condition 8202(2) – enrolment. 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 19 November 2018 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

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 that she was not enrolled in a registered course. The applicant said she had arrived in Australia on 7 November 2013, and she was subsequently granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 26 October 2015. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 5 December 2016, the applicant was advised that based on information on the Provider Registration and International Student Management System (PRISMS), she had not been enrolled in a registered course of study since 20 May 2016. Therefore, it appeared she had breached condition 8202; and that her visa may be cancelled under s.116(1)(b) of the Act.

8. The applicant responded to the NOICC. Amongst other things, she lodged evidence she had obtained a COE on 7 December 2016, which the delegate (and now the Tribunal) noted was after the NOICC had been received by her. The delegate then cancelled the applicant’s Student visa on 15 December 2016.

9. After having discussed the evidence with the applicant at hearing, I am satisfied she failed to maintain enrolment in a registered course of study for around 6 ½ months at the time the NOICC was issued.

10. Therefore, and 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

11. 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’

12. Regarding the purpose of the applicant’s travel to and stay in Australia, by letter dated 12 November 2018,[1] the applicant said she arrived in Australia on 7 November 2013. She had also said she studied an English language course from February to November 2014; that she commenced to study a Diploma of Management course; and that she enrolled in a Bachelor of Business course. The applicant also said her intention to study in Australia is genuine.[2] The delegate noted the applicant had said her intention to travel to and stay in Australia was for the purposes of study. However, she had not been enrolled in a registered course of study since 20 May 2016, at the time the NOICC was issued.

    [1] Tribunal – folio 42.

    [2] Tribunal – folio 41. 

13. By emailed submissions of 16 November 2018,[3] the applicant lodged with the Tribunal a letter from SCBIT (Sydney College of Business and IT) dated 23 February 2016[4] (relating to a Diploma of Management). It was also stated the applicant had ‘done most of the course of her diploma of management and she only stopped her studies [in 2016] as she encountered financial difficulties due to her family health issues and her health problems’[5] (discussed below). The Tribunal notes the applicant also obtained a COE on 7 December 2016 (after the NOICC was issued). By migration agent email of 12 November 2018,[6] the applicant also lodged a Conditional Letter of Offer from APIC International College dated 9 November 2018. That was to study a Bachelor of Business. She believed that with a degree, she would have better job opportunities in Vietnam. The Tribunal accepts that education qualifications in Australia are well regarded in Vietnam.

    [3] Tribunal – folio 65.

    [4] Tribunal – folio 64.

    [5] Tribunal – folio 65.

    [6] Tribunal – folio 40. 

14. However, the COE dated 7 December 2016, did not result in the applicant materially engaging in any study; and the Conditional Letter of Offer (obtained only nine days before the Tribunal hearing), has not yet involved the applicant in any study. Further, at hearing the applicant said she had had only completed one English language course since arriving in Australia. The only other course the applicant engaged with in Australia was the abovementioned (not completed) Diploma of Management, and which she ceased in the first half of 2016. Based on the evidence before it, the Tribunal is not satisfied the applicant’s present intention is to remain in Australia to study a registered course.

15. Next, and regarding the extent of compliance with visa conditions, as noted herein the applicant was not enrolled in a registered course of study for around 6 ½ months at the time of the NOICC letter. The Tribunal believes this breach is significant.

16. Regarding the degree of hardship that may be caused to the applicant or her family if her visa is cancelled (including financial, psychological, emotional or other hardship), in her response to the NOICC, the delegate believed the applicant did not make any specific claims about any hardship that may be suffered by herself or her family.

17. At the Tribunal hearing, the applicant said that if her visa was cancelled, she would not be able to complete a Certificate or Diploma or Bachelor course in Australia and on her return to Vietnam (where her parents and brother still resided), she would not be able to find ‘good work’ with a ‘better salary’. She said the courses she could study in Vietnam were not as highly regarded as qualifications in Australia. The Tribunal believes this may be correct. However, and though the Tribunal accepts the applicant may have suffered some emotional and or physical health concerns (discussed below), she has not engaged in any material study since early 2016. In the circumstances, the Tribunal is not satisfied the loss of career opportunities and better salary would constitute serious harm for the applicant, otherwise the Tribunal is satisfied she would have (at least attempted to) engage in appropriate study far sooner than she has.

18. At hearing, the applicant also said she wished to care for her aging parents. She said her mother was 60 years old (and had ongoing health concerns – discussed below), and her father was 58 years old (and he was employed as a Police Major or Captain in Vietnam). The Tribunal understands the applicant could find work commensurate with her skills in Vietnam and would still be able to assist her parents. Importantly however, the Tribunal is also satisfied that if caring for her aged parents constituted a serious issue for the applicant, she would have (at least attempted to) engage in appropriate study far sooner than she has.

19. That being said, the Tribunal does accept that if the applicant’s visa is cancelled, she or her family may be subject to some limited harm.

20. Next, and regarding the circumstances in which the ground for cancellation arose, in her response to the NOICC the applicant said she was not enrolled in a registered course of study in Australia as she was “feeling unwell and she ceased to study” for a ‘period of six months’. However, the delegate noted that no evidence had been provided in respect of any medical diagnosis or illness and the impact this may have had on her capacity to study. Further, there was no evidence she had sought a deferment from her studies as night be expected of a student in similar circumstances.

21. At hearing, the applicant advised the Tribunal she had attended a doctor on two occasions in Australia. The first in May 2016, which she said was related to her stress (also discussed below). The second was in March 2017, when she had suffered headaches and a loss of appetite. Though it took some time to elicit, the Tribunal understands the March 2017 illness was not claimed to have had anything to do with the stress she said she suffered. She also said she took some herbal medicines/treatment in 2016/2017. However, the Tribunal is now satisfied that from around early 2017, the applicant did not have any health issues that would have prevented her from studying in Australia.

22. However, by migration agent email of 12 November 2018,[7] the applicant lodged a number of medical treatment reports from Vietnam, all apparently dated from 2016. For instance, one translated ‘Certificate of Diagnosis and Treatment’ report was dated 7 November 2016. She lodged a second translated ‘Certificate of Diagnosis and Treatment’ dated 7 November 2016. Both appeared to materially say the same thing, being that on ’10 April 2016’ the applicant’s mother (the mother)  ‘took eyes diagnosis and treatment at the eye clinic because her eyes are opaque, humour and xerophthalmia’ (sic). The claimed ‘treatment process’ was listed as ’01 month’.[8]  A third translated ‘Certificate of Diagnosis and Treatment’ dated 25 May 2016 was lodged. That said the mother ‘took diagnosis and treatment the disease: waist and neck spinal degeneracy’.[9] A fourth and fifth translated ‘Certificate of Diagnosis and Treatment’ dated 15 October 2016 and 15 October 2016, said the mother ‘took diagnoses and treatment the disease: cerebrovascular accident after-effect’.[10] Further ‘Certificate[s] of Diagnosis and Treatment’ dated 9 November 2016, said the applicant/mother ‘took diagnosis and treatment of articulation degeneracy, polyarthritis’;[11] and for ‘gout disease and internal haemorrhoids’.[12] 

    [7] Tribunal – from folio 63.

    [8] Tribunal – folio 62 (reverse side); 60. 

    [9] Tribunal – folio 56.

    [10] Tribunal – folio 54 (reverse side); 52.

    [11] Tribunal – folio 50 (reverse side).

    [12] Tribunal – folio 46 (reverse side).

23. By letter dated 12 November 2018,[13] the applicant said that in April 2016, her mother and father ‘got sick’. They were the applicant’s ‘main financial support’. She then ceased studying in May 2016. The applicant then said her parents’ illness affected her ‘mentally and physically’; her mood was low; she could not concentrate; she was worried about her parents; she did receive some financial support from local persons; but she was ‘struggling. The applicant said that when she received the NOICC, she had to borrow money from a friend to enrol in a course in Australia. She ‘wanted some time’ to ‘get back on track’, but her visa was cancelled.  By letter dated 12 November 2018,[14] the applicant also said that now her parents ‘are in good health and can support her financially’; so the applicant is ‘interested in resuming her education in Australia’.

    [13] Tribunal – folio 42.

    [14] Tribunal – folio 42.

24. When discussed at hearing, the applicant said her father was employed in Vietnam as a Police Major or Captain; and her mother had worked as an accountant at a school in Vietnam (though she had ceased this work after falling ill in 2016). The applicant then said her mother had suffered a stroke in early 2016 and her father cared for the mother. When then asked why this was not put to the Department (ie the new evidence about her mother’s claimed health issues), the applicant said she was ‘confused’ at the time and it was also submitted this was possibly the fault of her prior agent. However, the Tribunal notes the applicant’s English language skills were not competent, and her social interaction with persons in Australia, would commonly have included a substantial number of persons with whom she could speak (the expatriate Vietnamese community and/or other international students). Therefore, the Tribunal is not satisfied the applicant’s claimed confusion or the prior agent’s claimed incompetence, explain why the applicant did not mention her parents’ (and particularly her mother) being unwell in or around 2016.

25. At the commencement of the hearing, the applicant had also told the Tribunal she had worked approximately 20 hours per week at a ‘nail shop’ (a manicurist) in Wollongong for around 1 ½ years after arriving in Australia, and for the last 12 months, she had worked in a ‘nail shop’ in Penrith. Later in the hearing, and after noting the stress she claimed to have suffered had not prevented her from working in Australia, the applicant said she had ‘reduced her hours’ when she had become stressed. However, and as stated at hearing, this was inconsistent with what she had stated earlier in the hearing and the Tribunal rejects this new evidence as false. 

26. That being said, based on the evidence before it, the Tribunal will accept the applicant’s parents suffered some form of health concerns in 2016 (though she said they were now ‘well’). I accept the applicant received some financial support from her family and that her father, who she said cared for her mother since early 2016 (though he also worked full time as a Police Major or Captain), would have directed some of his monies to pay for any medical treatment the mother had received. However, that medical assistance was apparently ongoing and the Tribunal put to the applicant it may appear she did not have the financial capacity to study at the Higher Education level in Australia (if the medical assistance was not ongoing after early 2017, then it may not appear the applicant was prevented from studying from early 2017 for financial reasons). In response, the applicant materially repeated that she was stressed. Based on the evidence before it, the Tribunal now finds the applicant does not have the financial capacity to study at the Higher Education level in Australia.

27. Next, the Tribunal does accept the impact of her parents’ health concerns in 2016, may have distracted the applicant from her studies for a time in 2016 (and at hearing the applicant conceded that her parents health improved in early 2017). However, the applicant did not obtain any further evidence that she wished to study in Australia prior to lodging the Conditional Letter of Offer from Asia Pacific International College dated 9 November 2018 (being nine days prior to the hearing). Based on the evidence before it, the Tribunal now finds that the circumstances giving rise to the cancellation of her visa, did not prevent the applicant from pursuing studies for over 1 ½ years after the health of her parents had improved.

28. Regarding her past and present behaviour, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be affected by the cancellation of the applicant’s visa. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

29. Next, the Tribunal notes that if the applicant’s Student visa is cancelled, she would become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. Further, and again based on the evidence before the Tribunal, I am satisfied the applicant would be able to retain her Bridging Visa (temporarily) in order to remain in the community to finalise her affairs prior to departing Australia.

30. The Tribunal also notes that if the applicant’s visa is cancelled she would be subject to s.48 of the Act and would have limited options to apply for further visas in Australia.  She would also be subject to PIC 4013; meaning she could not be granted a temporary visa for three years from the date of cancellation.  

31. However, after considering all the accepted evidence as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Mr S Norman
    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.