Vo (Migration)

[2019] AATA 883

Vo (Migration) [2019] AATA 883 (1 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr The Quang Vo

CASE NUMBER:  1713020

HOME AFFAIRS REFERENCE(S):           BCC2017/997856

MEMBER:Joseph Lindsay

DATE:1 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 01 February 2019 at 3:24pm

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 – poor English language skills – ability to successfully complete studies in Australia – circumstances giving rise to ground for cancellation – financial issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 360
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 12 June 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 failed to remain in a registered course of study and breached condition 8202(2)(a) of his student 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 was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on Friday 1 February 2019 at 10:00am.

4. The applicant attended the hearing. The applicant was assisted by an interpreter. The applicant was not represented.

5. 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

6. 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?

7. 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).

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

9. In the hearing, the applicant admitted that he had not remained in a registered course of study since 10 August 2016 and in doing so he had breached condition 8202(2)(a). 

10. 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)(a).

    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’.

    Applicant’s English skills and abilities

12. One of the more significant questions for the Tribunal is whether the applicant would be reasonably able to successfully study and complete a higher education course in Australia that was conducted in English if the applicant was to hold a 573 student visa. 

13. Throughout the hearing, the applicant repeatedly indicated to the Tribunal that his English skills were of a low standard. The applicant freely admitted that he could not communicate with the Tribunal without the assistance of an interpreter.

14. The applicant freely admitted that his English language skills were poor when he was back in Vietnam before he applied for the 573 visa, and that his English language skills have not improved markedly despite his living in Australia continuously for nearly five years. When asked why his language skills have not improved, the applicant indicated it was because he had not been studying and he had only mixed with Vietnamese-speaking people and not English-speaking people.

15. The Tribunal put to the applicant its concern about the applicant’s apparently poor English language skills, and how this situation was going to impact on his ability to study and successfully complete a higher education course.

16. In response, he indicated that his English is not very good because he had not been studying very much. The applicant expressed his concern that he had been required to study the English language course and his other course of study at the same time and he found this too hard. The applicant indicated that, insofar as his competency in English was concerned, he was not ready to study when he came to Australia in 2014.

17. When asked how his response would convince the Tribunal that if he started studying a higher education course in the near future that he would actually be able to undertake and complete the course, the applicant said ‘I will try to study because my parents asked me to get qualification and come back home for new career.’

18. In considering the above the Tribunal finds that the applicant’s poor English language skills are such that the Tribunal is not convinced that the applicant would be able to successfully complete a higher education sector course should he get his student visa.

    The circumstances in which the ground for cancellation arose

19. The Tribunal discussed the applicant’s student history with him. The applicant emphasised to the Tribunal that he found the English course hard. 

20. The applicant initially said he could not remember what courses he enrolled in. He claimed he was ‘forced’ to study his English language course as well as another course at the same time and it was too hard for him.

21. When the Tribunal asked whether the applicant could read English, he indicated that he could not read English, but then clarified while he could read English he could not understand it in Vietnamese.

22. With the assistance of the interpreter, the Tribunal discussed the applicant’s Provider Registration and International Student Management System (PRISMS) record with him during the hearing in accordance with s.359AA of the Act. The applicant indicated he did not want time to respond and in fact indicated he did not wish to respond to the information in the PRISMS record other than to indicate to the Tribunal that the information was accurate and correct. In any event, the Tribunal finds that none of the information in the PRISMS record is adverse to the applicant.

23. The applicant subsequently agreed that:

    a.in 2014 he enrolled in a Diploma of Science in Computing and IT and on two occasions did not commence studies in that course so his course provider cancelled those enrolments;

    b.he enrolled in a Certificate IV in Accounting that was meant to start in 2015, but he did not commence his studies so his course provider cancelled that enrolment;

    c.he enrolled in a Certificate IV in Marketing and he completed that course in 2016;

    d.he enrolled in a Bachelor of Information Technology on two occasions – once in 2014 and once in 2016 – but on both occasions he did not commence studies in that course so his course provider cancelled those enrolments;

    e.he enrolled in a Diploma of Accounting and an Advanced Diploma of Business – both of which were cancelled in 2015 due to his non commencement of studies.

    f. the Bachelor of Information Technology was the last course in which he was enrolled, and that enrolment ceased on 10 August 2016.

24. The Tribunal then put to the applicant that the delegate had said that the applicant did not respond to the notice of intention to cancel the applicant’s student visa, when indeed the Departmental file showed that the applicant did provide a response on 31 May 2017.

25. The Tribunal notes that attached to the response was a personal statement, a ‘new’ letter of offer and ‘financial hardship evidence.’ Also attached to the response were copies of several documents including documents written in the Vietnamese language with associated translated documents apparently completed by a person who is not NAATI-accredited. From what the Tribunal can identify, the documents appear to be a certificate of business registration for private enterprise issued on 26 October 1998, a certificate of birth for the applicant, a ‘note for leaving the hospital’ dated 22 May 2017, a ‘copy of medical record’ undated but referring to the dates between 19 May 2017 and 22 May 2017, a ‘certificate of fishing vessel registration’ dated 29 July 2008, another ‘certificate of fishing vessel registration’ dated 29 July 2010, a letter of offer dated in May 2017 from St Peter Institute, for the applicant to commence a Certificate IV in Business on 17 July 2017 and an Advanced Diploma of Business on 5 February 2018.

26. The statement from the applicant is brief. However in summary the applicant indicated that his family had financial problems that affected his study performance. He indicated that in 2016 his family fishing business incurred problems, and this in turn affected his ability to pay his course fees and support himself. He indicated he then started working to support himself.

27. He then indicated his family fishing business no longer has any such problems and he now can continue his studies. The applicant then indicated to the Tribunal that due to his poor English language skills, another person prepared the response on his behalf. Whilst he initially indicated that he could not remember what information he had given the person who prepared his response to the Department, the applicant subsequently indicated that the circumstances as indicated in the response were an accurate reflection of his circumstances.

28. The Tribunal put to the applicant that he had provided a financial guarantee that he would have sufficient financial support to enable him to undertake his studies. The applicant acknowledged that he did provide a financial guarantee. The Tribunal put to the applicant that the Tribunal accepted that the applicant had experienced financial difficulties due to his family’s circumstances, but that the Tribunal may put heavier weight on the fact that at the time the applicant got their student visa that they also provided a financial guarantee that he could support himself and pay his course fees. In response the applicant indicated he wanted to get a new visa to finish his study to go back home to open a business in seafood products.

29. The Tribunal put to the applicant that he had indicated to the Tribunal that his English skills were poor before he started studying in 2014, his English skills were still poor, and despite the problems he had in 2016 the problems in regard to his ability to study still exist because of his poor English language skills. In response, the applicant indicated that when he came to Australia he expected that he would be able to study English slowly but his English was still no good.

30. The Tribunal asked the applicant that if he knew his English was so poor, why did he not go back to Vietnam and return when he was ready and sufficiently capable with his English language skills to do the course. In response, the applicant indicated that in Vietnam he can study English but the speaking was not correct and pronunciation was not the same as Australia.

31. The Tribunal put to the applicant that he had indicated that after being in Australia for five years, it had made no difference to his English language skills. The applicant indicated this was because he was living with Vietnamese people and not mixing with other ‘native’ people.

32. In consideration of the above, the Tribunal accepts that the applicant’s family circumstances caused his some difficulty in 2016. However, given the financial guarantee that the applicant provided, the Tribunal places low weight on the applicant’s submissions in this respect.

33. The Tribunal places heavy weight on the serious problems the applicant has with his English language skills as being the most significant impediment to him being able to successfully undertake his studies in Australia, and the applicant’s course history reflects this. 

34. In consideration of the above, the Tribunal does not accept that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are exceptional circumstances.  The Tribunal is not convinced by the applicant’s submissions that his personal circumstances in 2016 caused him not to be enrolled in a registered course of study. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    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

35. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

36. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

37. In response to this issue at the hearing, the applicant indicated that if his visa was cancelled he would suffer some hardship primarily because it would impact on his ability to open another company like his parents have (a seafood company). The applicant indicated that his parents have a domestic business but that he wanted to open an international business, and to do that he needed qualifications. 

38. The Tribunal put to the applicant that he had already achieved a Certificate IV in Marketing and put to the applicant that this qualification may be sufficient to assist him with his endeavours. However, the applicant said this was not sufficient. When the Tribunal asked why, the applicant indicated the reason was because the institute did not let him know he finished his study.  

39. In consideration of the above, The Tribunal accepts that the applicant may experience some hardship as he has described. The Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

40. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

41. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his student visa. The Tribunal places low weight on this information in the applicant’s favour.

    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

42. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa.

43. In response the applicant indicated he was aware of this potential impact on him.

44. The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully.

45. At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to Vietnam.

46. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

47. The Tribunal places low weight on this information in the applicant’s favour.

    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

48. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

49. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated that he had no other relevant matters to raise with the Tribunal.

    Conclusion

50. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 14 March 2014, now nearly five years ago, the applicant has not completed any higher education courses.

51. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 10 August 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).

52. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances. 

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

    DECISION

54. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Joseph Lindsay
    Member

    
    
    ATTACHMENT

    Migration Regulations 1994, extract

    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.