Trinh (Migration)

[2020] AATA 1675

Trinh (Migration) [2020] AATA 1675 (10 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xuan Tai Trinh

CASE NUMBER:  1726114

HOME AFFAIRS REFERENCE(S):          BCC2017/2905912

MEMBER:Rachel Westaway

DATE:10 February 2020

PLACE OF DECISION:  Melbourne

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 10 February 2020 at 5:04pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –did not comply with condition 8202 – applicant ceased to be enrolled in a registered course of study – hardship implications for the applicant and the church – impact on the congregation and the reputation of the priest–credible witness– decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 October 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 a condition on his visa. 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 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence Mr Tran, a priest in Vietnam known to the applicant The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

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

6. The applicant provided the Tribunal with a copy of the decision made by the delegate.

7. On 8 September 2017 the Department of Home Affairs (the department) provide the applicant with a Notice of Intention to Consider Cancellation (NOICC). The applicant responded to the NOICC via his registered migration agent on 14 September 2017 outlining the applicant’s wish to become a priest and admission that he made some uninformed mistakes relating to his course of study

8. The following documents were submitted to the department in support of the response to the NOICC: 

   ·A written reference from Rector Peter Thompson dated 12 September 2017

   ·An academic transcript from Vianney College issued on 14 July 2017

   ·Statutory Declaration made by Xuan Tai Trinh dated 12 September 2017

   ·A written reference from Father Superior Anthony Hoang Duc Luyen

   ·Invitation from Latrobe University to a registration and enrolment and orientation session

   ·A confirmation of enrolment for Diploma of Business for the period from 1 October 2017 to 10 February 2018

   ·An untranslated certificate of completion from the Lasallian Institute of Theology and a translated version of the same

9. In addition to the abovenamed documents, the department file also contained a copy of the following:

   ·A Certificate of Completion from La Trobe University for Level 4 English dated 3 June 2016

   ·The applicant’s curriculum vitae 

10. The applicant submitted the following documents to the Tribunal in support of his application for review:

    ·     A copy of the delegate’s decision

    ·     A written reference from Anton Tran Dinh Van dated 22 January 2019

    ·     A Certificate of Completion from Victoria University in Teaching Methodology conducted from 10 September to 17 October 2013

    ·     An identity card belonging to the Applicant

    ·     Statement of claims made by the Applicant dated 25 January 2019

    ·     A written reference from Rector Peter Thompson dated 12 September 2017

    ·     An academic transcript from Vianney College issued on 14 July 2017

    ·     A written reference from Father Superior Anthony Hoang Duc Luyen

    ·     A confirmation of enrolment for Diploma of Business for the period from 1 October 2017 to 10 February 2018

    ·     A reference letter from Rev. Luyen Duc Hoang dated 10 January 2019

    ·     Invitation from Latrobe University to a registration and enrolment and orientation session

    ·     An untranslated certificate of completion from the Lasallian Institute of Theology and a translated version of the same

    ·     A written reference from Rev. Luyen Duc Hoang dated 10 January 2019

    ·     An academic transcript dated 8 February 2019 for a Diploma of Business from La Trobe College

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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?

12. 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).

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

14. The applicant confirmed at hearing he was not enrolled in a registered course of study between 11 February 2017 and 8 August 2017, a period of 6 months.

15. 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

16. 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 travel to or remain in Australia

17. The applicant stated he is 42 years of age and is Vietnamese. He is in the process of being ordained as a Priest. He came to Australia under the orders of the Catholic Church in Vietnam. He was carrying out his work in order to be ordained as a Priest.  On 6 October 2011 he was granted Religious worker TE-428 visa offshore and then arrived on 11 September 2012 in Australia. However, the priorities of the church and the applicant changed. 

18. He stated that he has committed his life to the Catholic Church. He started as a Monk after leaving school and the first 2 years was devoted to becoming acquainted with the life and then he went on to study theology and philosophy at university and continues to live and be involved in the congregation.  He described how he spent 2 years in the congregation and then another 4 years and in the last year he had to travel and interact with the community and carry out Christian work.  He has travelled as part of his job. In 2010 he was sent to the Vatican to help the poor and sick in Rome. When he returned to Vietnam he helped the poor until 2012. Then the congregation of St John of God sponsored him to go to Australia to work and interact with the community and then to study. He was sponsored for his subclass 457 visa by St John of God.

19. The applicant has completed his theology study in Vietnam under the Father Superior priest at St Anthony’s. In Vietnam, the first congregation he was attached to was St John of God and after this he moved to St Anthony’s. He said that the first congregation was initially upset with him for leaving but when he explained his reasoning to them they understood. He said that he moved because he wanted to advance from being a monk to priest.

20. He claims to have initially been granted a subclass 457 visa and he worked as a Monk visiting nursing homes and hospitals and visiting church members. His subclass 457 was cancelled on 18 September 2015 when he left St John of God.

21. The applicant explained that he had struggled obtaining correct advice regarding immigration and visas because he was initially instructed to apply for a training visa but he realised it was wrong and the application was withdrawn. He applied for and was granted a student visa for the purpose of studying commerce and media in Australia. The visa was granted on 5 October 2015.  He claims that the church wanted him to study business and events.

22. He completed part of his course until he was asked to participate in further studies within the church. He stated he did not realise that the education programme offered was not registered.  He explained he had every intention to return and spoke to the school but did not formally request a deferment.

23. The applicant explained that he does have a compelling need to return to Australia because he has only studied half of the course and the Church planned to assign him to look after financial matters in the congregation and he does not yet have sufficient skills to attend to these duties and the superior priest wanted him to finish studying. He can then help the poor. The Tribunal put to the applicant that if his visa remained cancelled he could complete the course in Vietnam and the cost associated would be lower. The Applicant responded that the value of the certificate for a course completed in Australia is greater than if it were completed in Vietnam. The applicant also stated that the standard is lower in Vietnam and the Church wants its priest to be trained at the highest level.

24. The Tribunal understands and accepts that the applicant is expected to obey the orders of senior ordained members of the Catholic Church and he is required to travel and work in places in which they deem need assistance. The applicant was sent to Australia to work with a congregation and to study commerce so that he would have the requisite skill set to assist with maintaining the financial statements of a church on return to Vietnam. The applicant undertook some work on his subclass 457 visa and then studied on his student visa but claims to have mistakenly considered the request of the church to delay his studies linked to his subclass 573 student visa and study theology subjects in-house. The church’s units of study were not part of a registered course and as such the applicant was in breach of condition 8202. The Tribunal appreciates that the environment the applicant was living and working in was not only remote in location but removed and somewhat isolated from the general public leading him to naively swap between courses without consideration of the requirements of the visa. The Tribunal does not accept this as a reasonable excuse but does accept that the applicant and the church were not trying to be deceptive.

25. Given the applicant demonstrated that he did intend to study and did enrol and pass subjects undertaken in the registered course and the Tribunal accepts that the applicant was studying theology subjects, it places some weight on these factors in favour of not cancelling the visa.

    the extent of compliance with visa conditions

26. There is nothing before the Tribunal to indicate that the applicant has not complied with conditions on previous held visas. The Tribunal does note that the applicant’s previous subclass 457 was cancelled as he was no longer sponsored.  The cancellation was a separate issue and the Tribunal does not see it as a factor in assessing the applicant in this situation and as such gives this factor no weight in considering whether the visa should be cancelled.

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

27. The applicant stated that if the visa is cancelled he must accept this but he asked for empathy because he has been associated with Australia for two years and he would like to continue this and to return to the congregation and work with the community. He would like to complete his course and obtain an Australian degree. He said that it is also the wish of the congregation that this happens. He has approximately 1 ½ years to go in his course. His marks were average. He said was receiving 6-70%.

28. He also stated that if his visa is cancelled it has reputational issues for the Church and himself and people do not understand the reasons why and this will weigh on his psychological wellbeing. He said that the Brothers support the applicant and have supported him in Australia too so it is upsetting for them too.

29. The Tribunal took evidence from the applicant’s witness Father Van who holds the position of Deputy Superior. Father Van has known the applicant for 8 years. He works on financial and administrative matters for the congregation and was assigned to look after these approximately one year ago. Father Van stated that the applicant performs his assignments very well. He confirmed that he knew the applicant was studying business. He said that he has worked with a big congregation which requires good financial record keeping and someone who can assist in running the activities of the congregation. There are 130 members including Monks and Priests in the congregation. This is why he was sent to study. He explained that a three year bar from the applicant applying for another visa in Australia would affect the congregation because there are so few people with this skill set. He said that the congregation helps people with medical issues and his territories cover three provinces. They need a good administrator and someone to control activity. He said that this was previously undertaken by himself but he also has other responsibilities.

30. The Tribunal accepts that the cancellation of the visa would have hardship implications for the applicant and the church.  It is reasonable to expect that a degree of hardship is felt when a visa is cancelled. However the Tribunal notes that in this individual case, the applicant is part of a much larger community who are relying on his ability to travel wherever he needs to go and the church sends him, a level of competence in financial record keeping and event management and as the applicant stated, a quality education. If the visa is cancelled, in many respects the effects are felt more broadly across the applicant’s Catholic community and less so directly by him. The Tribunal appreciate that the applicant will remain employed as a Priest, but his ability to assist in areas which require help is more limited. The Tribunal gives some weight to these factors in favour of not cancelling the visa.

    circumstances in which ground of cancellation arose

31. The Tribunal asked the applicant to explain why he was not enrolled in a registered course of study for six months. He explained that he did not feel peace in his heart with St John of God. They help people become Monks but rarely moved them to become a Priest. They sponsored him for his subclass 457 working visa when he first came to Australia. He moved to St Anthony congregation in Wagga Wagga after meeting a higher ranking priest and he told him that he would like to switch congregations. He decided to apply for the subclass 573 visa, the subject of this review and study at La Trobe; initially an English course and then Media/Business. He obtained a subclass 573 in 2007 through La Trobe – studying English initially and other Monks said a higher ranking priest said they would accept him to study theology and become a priest.

32. He stated that he dropped out of the course to study unrelated subjects in a non-registered course within the church. He explained that he did not want to drop out completely and he told the university he would return. He stated that he had every intention that he would return to his studies at La Trobe University. He claims to have spoken to a lady at La Trobe University whose name was Thu but it was not a formal request for deferment because naively he believed that the course he was studying under the Catholic Church was a registered course. He said it covered many subjects including philosophy and documentaries relating to the history of Catholicism in Australia.

33. The circumstances for the breach were not beyond the applicant’s control and as such the Tribunal gives this factor no weight in favour of the applicant and not cancelling the visa.

    past and present behaviour of the visa holder towards the department

34. There is nothing to suggest that the applicant has been anything other than courteous to the Tribunal and to the Department in all of his dealings. However it is expected that all visa holders act in such a manner and the Tribunal gives this factor no weight in favour of the applicant and not cancelling the visa.  

    whether there would be consequential cancellations under s.140

35. There is no one associated with the applicant’s visa and as such this factor is not relevant.

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

36. If the visa is cancelled the applicant may be subject to a three year bar from applying for another visa. The applicant has left Australia and as such he would not be in a position to be detained.

37. A cancellation may be problematic for the applicant if applying for visas to other countries. The applicant has demonstrated his need to work in different countries given he is at the time of writing an ordained priest. A cancellation may have an impact on him being able to return to Australia, the Vatican or other countries where the church would like to send him.

38. The impact of the cancellation would be problematic for the applicant given his already demonstrated need to travel and assist people. The Tribunal gives this some weight in favour of not cancelling the visa.

    whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

39. The applicant has returned to Vietnam in order to be ordained and has not disclosed any concerns about returning to Vietnam. The Tribunal has not placed weight on this issue.

40. The Tribunal has considered the factors outlined under discretion individually and cumulatively. Whilst it is mindful that the responsibility to adhere to conditions is the responsibility of the visa holder, the applicant did not in any way demonstrate that he was doing anything other than studying and following his commitment to the church as a Monk. The Tribunal does not accept his explanation of ignorance as taking precedent over the need to adhere to visa conditions, but it has taken into consideration the fact that the applicant was not knowingly or flagrantly ignoring the condition. He presented at hearing along with his witness as remorseful and genuine. Furthermore the implication of having a priest who is unable to return to Australia when he was associated with a congregation has an impact on the congregation and the reputation of the priest. The expense and time devoted to the commerce degree is something which the church stated they needed in Vietnam and the Tribunal accepts this. The Tribunal has taken all factors into account and whilst it does not condone the breach, has, in this instance placed more weight on the hardship faced by the church and the applicant and the congregation if the visa is cancelled.

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

   DECISION

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

   Rachel Westaway
   Senior 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.