VO (Migration)

[2018] AATA 5933

VO (Migration) [2018] AATA 5933 (20 December 2018)

DECISION RECORD

DIVISION:        Migration & Refugee Division

APPLICANT:     Mr HUY HOAI VO

CASE NUMBER:         1620150

HOME AFFAIRS REFERENCE(S):     BCC2016/3037448

MEMBER:        Justin Owen

DATE:    20 December 2018

PLACE OF DECISION:           Sydney

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

Statement made on 20 December 2018 at 2:22pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course for 13 months – financial difficulties – failed to complete any registered courses enrolled in since 2015 – failed to rectify enrolment situation – homesick – lack of motivation – significant breach – hardship caused by visa cancellation limited – lack of evidence – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140, 189, 198
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202, Public Interest Criterion 4013

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 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 applicant is a national of Vietnam born 19 December 1989.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 11 September 2013 and was subject to condition 8202.  On 28 October 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course of study between 17 August 2015 and 26 September 2016.  The applicant responded to the NOICC on 28 October 2016.  On 10 November 2016 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.  On 29 November 2016 the Tribunal received an application for review of the cancellation.      

3. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202 (2)(a) of the 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.

4. On 27 November 2018 the Tribunal contacted the applicant’s representative to confirm the applicant’s address.  The applicant’s representative responded to the Tribunal that same day to advise he was not in contact with the review applicant and believed he was no longer working for him.  The Tribunal advised the applicant’s representative that the Tribunal had not received any change of details forms or information.  The applicant’s representative wrote to the Tribunal on 27 November 2018 (T1, Folio.22) stating the applicant had not been in contact with him for a long time since the application was lodged.  He wrote he was unaware of the applicant’s current location; had no instructions to continue acting for the applicant; and had seen the applicant’s name [details deleted].

5. On 28 November 2018 the Tribunal contacted [Location 1].  [The] officials were able to match the applicant’s date of birth and [other identifier] and confirm the applicant was currently [at] [Location 2].   

6. On 28 November 2018 the Tribunal invited the applicant directly at [Location 2] to attend a hearing to give evidence and present arguments relating to the issues in his case on 13 December 2018. 

7. The applicant appeared before the Tribunal on 13 December 2018 via video link from [Location 2] to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

1. 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?

1. 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).

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

3. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 10 November 2016. The decision record states that information before the Department from the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had not been enrolled in a registered course of study between 17 August 2015 and 26 September 2016. 

4. The delegate’s decision record states that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 28 October 2016.  The applicant responded on the same day.  The decision record the applicant provided states the applicant agreed in his response to the NOICC that there are grounds for cancellation of his visa and that there was non-compliance with visa conditions.  

5. At the hearing on 13 December 2018 the Tribunal asked the applicant  if he agreed that there were grounds for the cancellation of his visa due to his lack of enrolment in a registered course of study between 17 August 2015 and 26 September 2016.  He agreed there were grounds. He furthermore agreed in oral evidence that there had been non-compliance with his visa conditions. 

6. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between the dates of 17 August 2015 and 26 September 2016.  The applicant confirmed in oral evidence that since that time he has not been enrolled in any registered course apart from a brief enrolment and attending an English language course for two weeks in 2016.  Accordingly, the applicant has not complied with condition 8202(2). 

Consideration of the discretion to cancel the visa

1. 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.’

2. At the hearing the Tribunal noted that the applicant was currently [at] [Location 2].  The Tribunal warned the applicant about [a certain issue].   [Details deleted].  The Tribunal explained its primary job in this review was to determine if the cancellation of his Student visa should be upheld or not.

3. The Tribunal noted that the applicant’s Student visa was cancelled on s.116(b) grounds and a purported breach of Condition 8202.  [Details deleted].  The Tribunal warned the applicant that it would be writing a decision record.  The Tribunal stated to the applicant that he [details deleted].  The Tribunal asked the applicant if he had any questions.  He said he did not.  The Tribunal asked if its warning concerning [a certain issue] was clear.  The applicant responded in the positive and said he understood. 

4. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia.  The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia.  The primary decision record indicates that PRISMS evidence available to the Department indicated the applicant ceased to be enrolled between 17 August 2015 and 26 September 2016.  According to the applicant’s oral evidence to the Tribunal he has not studied for anything further since the delegate’s decision other than two weeks in an English language course in 2016.  The Tribunal considers the breach of condition 8202(2) to be significant and that the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa.

5. The applicant stated that the purpose for his travel and stay in Australia was for study.  He said it was to gain qualifications.  The applicant said that he had not enrolled in another course as he could not afford to.  In response to the Tribunal’s questions he said had not completed any courses since coming to Australia. The Tribunal noted at the hearing to the applicant that in his response to the NOICC he had stated that his hometown in Vietnam was growing and all graduates would be able to obtain employment.  For that reason he claimed in 2016 that he needed to go back to study and was enrolling at Duke College to improve his English and start his major course.  The Tribunal asked what had happened since then.  The applicant said he went to Duke College for two weeks and dropped out whilst he never started his major study.  The applicant said he had not enrolled in any further 573 Higher Education level course.   Based upon the evidence of his significant period of non-enrolment, the Tribunal is of the view that the significant period of time the applicant has spent in Australia has not been for the purpose of study.   The Tribunal finds that between 17 August 2015 and 26 September 2016 the applicant was not fulfilling the purpose of his travel to and stay in Australia as the holder of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.  The applicant admits that he has not been enrolled in any course of study for 2016 beyond two weeks in an English language course that he dropped out of.   The Tribunal notes that the applicant has failed to successfully complete any of the registered courses of study he has enrolled in from 2015 until the present day. Given the applicant’s actions in failing to fulfil the purpose of his visa for a significant period of time, the Tribunal weighs this factor in favour of cancelling the visa. 

6. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.

7. The Tribunal is of the firm view that visa holders are expected to both study, and study at the visa subclass level for which they were approved at the time of application. On the evidence before the Tribunal, this has not been the case with the applicant.  The Tribunal considers the applicant’s failure, as outlined in the decision record and in his oral testimony to the Tribunal, to comply with the conditions of his visa by not being enrolled in a registered course of study for over one year at the time of decision to be substantial.  According to his oral testimony to the Tribunal’s hearing he has failed to complete any courses since the grant of his Student visa and since the purported cancellation over two years ago his only studies were a few weeks in an English language course.  

8. At the hearing the Tribunal asked the applicant if he had met the other conditions of his visa.  He said he had not as he had not enrolled in a registered course.  He said he had never considered seeking an alternate visa that was not based upon the enrolment in a registered course. 

9. The Tribunal noted that the applicant was currently [at] [Location 2].  The applicant stated [details deleted].  The Tribunal notes from the applicant’s oral testimony to the hearing that he has been [details deleted]. The Tribunal takes into account the fact that the applicant [details deleted].    

10. The Tribunal nevertheless considers the applicant’s non-compliance with his visa conditions to be considerable.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.

11. The Tribunal has considered the degree of hardship that may be caused to the applicant or his family members should his student visa be cancelled.

12. The decision record the applicant provided stated that the applicant did not specifically address any matters of hardship that may be caused as a result of the cancellation of his visa.  The applicant in response to the Tribunal’s questions concerning the degree of hardship he personally would face should his visa remain cancelled, stated that he had already faced a significant amount of hardship.  He said he would not be accepted by the Australian community.     

13. The applicant provided little detail pertaining to the hardship he would face should his visa be cancelled.  The Tribunal notes that the applicant claims to have been holding a six day a week job since 2014 so any cancellation and requirement to depart Australia would impact upon his current employment circumstances.  The Tribunal notes that cancellation may impact adversely upon the applicant’s desire to study in the future in Australia if he still wishes.  The Tribunal notes that the applicant retains the opportunity to study either in Vietnam or he can apply elsewhere offshore.

14. The Tribunal considers the hardship that would be caused on the applicant to be limited.  The Tribunal weighs this factor in favour of cancelling the visa. 

15. The Tribunal has considered the mandatory legal consequences of a cancellation decision. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia. Depending on the visa applied, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances. The Tribunal notes that the applicant has been charged with offences relating to cannabis and remanded in custody now for six months. The legal consequences of the cancellation specific to the applicant is that he is likely to be removed to Immigration Detention upon cancellation unless another visa allows him to stay for or pending the resolution of his criminal matter. On the evidence before it, the Tribunal weighs this factor neither in favour or against cancelling the visa

16. The Tribunal has considered the hardship to the applicant’s family.  In response to the Tribunal’s questions the applicant said that he was the hope of his family and specifically his parents.  He said if his Student visa remained cancelled then it would greatly disappoint his parents.  The applicant stated he does not have any family members residing in Australia so any cancellation and his departure will not create hardship for them.  He stated his family was in Vietnam.  The Tribunal accepts that his parents and family may feel some disappointment at the cancellation of the applicant’s Student visa.  The Tribunal also accepts the family may suffer some hardship from the end of the applicant’s employment in Australia (given his claim to send monies home to his family in Vietnam) but notes he will be available to work and support his family whilst domiciled in Vietnam.  The Tribunal furthermore notes the applicant’s was granted a Student visa, not an employment visa.  The Tribunal weights this factor pertaining to hardship to the applicant’s family in favour of cancelling the visa. 

17. The Tribunal has considered the circumstances in which the ground for cancellation arose.

18. The Tribunal notes that as outlined in the delegate’s decision the applicant provided, the applicant was not enrolled in a registered course of study from 17 August 2015 until 26 September 2016. The Tribunal notes from the decision record that in his response to the NOICC the applicant claimed he wanted to go home to Vietnam as he missed his family and he had intentionally discontinued his studies due to lack of motivation and interest.  The applicant claimed that his parents pressured him to continue his studies in Australia as they wanted him to return only after having completed a course and being subsequently able to obtain good employment back home.

19. At the Tribunal hearing the applicant stated in oral evidence that he ceased his enrolment in 2016 due to family circumstances.  He said it was financial hardship.  The Tribunal asked the applicant to explain: he responded saying that he had been receiving financial support from his family that enabled him to study.  He said his father became sick unfortunately with kidney and digestive issues.  The Tribunal asked the applicant if he informed the Department or his education provider of his change of circumstances and the difficulties he was facing. He said he did not.  The Tribunal asked if he had any evidence of these issues such as the health of his father and the subsequent financial impact upon his family and his own studies.  He said he did not.  The Tribunal notes that visa holders have compliance obligations concerning their financial situation and ability to finance their studies.  

20. The applicant said in oral evidence that he stopped studying because he no longer had any financial support and he needed to go to work to support both himself and his family in Vietnam.  He said he obtained employment at the fruit market as well as an assistant in home repairs. 

21. The Tribunal asked the applicant if he requested deferment of his studies between August 2015 and September 2016.  He said he did not, as he was affected by his family circumstances and was physically broken down.  He claimed he was not in such circumstances thinking of making any such request.  The Tribunal asked, given these claims, whether he sought the any medical assistance at that time.  The applicant said he did not. There is no evidence before the Tribunal to corroborate any such claims pertaining to his health and well-being.  

22. The Tribunal asked if he was aware that a condition of his Student visa was that he remain enrolled in a registered course of study.  He said that he was aware.  He agreed in oral evidence that he had received a letter from the Department when granted his Student visa and it outlined the conditions of his visa and the consequences of non-compliance.  The applicant agreed that he was aware his enrolment had ceased and he was aware that not being enrolled in a registered course would impact upon his eligibility to continue to hold a Student visa. 

23. The applicant agreed that he had not completed any registered courses of study in Australia since being granted his Student visa and arriving in Australia in 2013.  He said whilst he was not enrolled he had focused on working. The Tribunal asked the applicant why he did not update the Department on his change of circumstances.  He said he did not do so because of his limited English proficiency.  The Tribunal noted that interpreters were available to assist visa holders in their communication with the Department.

24. At the hearing the Tribunal was surprised when the applicant, in response to a question about the circumstances in which the grounds for cancellation arose, stated that he had no more to say.  He said that even if the Tribunal was considering making a decision in his favour concerning his Student visa, his family cannot afford to pay his educational and study costs anymore.   

1. In the absence of corroborative evidence the Tribunal finds the applicant’s claims concerning the circumstances in which the grounds for cancellation arose both vague and lacking in substance.  The Tribunal notes that there is no evidence before it or claim made that the applicant, given his claimed circumstances, ever approached his education provider or the Department either seeking a deferral or informing them of his non-compliance respectively.  He has made little effort to rectify his enrolment status.  The Tribunal has placed a considerable amount of weight of his claim in oral evidence that even if he the Tribunal made a decision in his favour, his family cannot afford to pay his student costs anymore.                

2. The Tribunal notes that the ground for cancellation arose due to the fact the applicant ceased enrolment with a registered education provider and subsequently failed to rectify his enrolment status in an adequate time.  The applicant on the evidence in the decision record had failed to adequately rectify his enrolment situation for over a year.  Apart from two weeks in an English language course, there is no evidence before the Tribunal or claim made that he has done so in the two years subsequent. 

3. The applicant was a direct party to his enrolment.  In his oral evidence to the Tribunal he has stated he was aware of the requirements of his Student visa and the requirement to remain enrolled in a registered course of study.  The Tribunal furthermore notes that visa holders are expected to be mindful of the requirements of their visa and to inform the Department of any changes to their status.  The applicant admitted he failed to do so.  The Tribunal has taken into account the applicant’s claims concerning his homesickness, his lack of motivation and the financial hardship he and his family have faced that precipitated a situation where he no longer meets the conditions of his Student visa.  Noting the lack of corroborative evidence to support any such claims, the Tribunal has nevertheless taken into account what the alleged impact these claimed events may have had upon the mental health of the applicant both singularly and collectively and the impact these events have had upon the applicant’s enrolment.  On the evidence before it concerning the circumstances in which the ground for cancellation arose, the Tribunal weighs this factor strongly in favour of cancelling the visa.

4. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  The decision record the applicant provided states the applicant has been cooperative in providing information relating to his current contact details when requested by the Department.  There is no other evidence before the Tribunal concerning the applicant’s previous and present behaviour towards the Department in favour or against cancelling the visa. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

5. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. The Tribunal notes from the decision record that there is no information before the Department which indicated that any other person currently holds a visa because the applicant held his student visa. The applicant agreed in oral evidence to the Tribunal that no one holds a visa because of his 573 student visa. There is no evidence or claim made of dependents. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

6. The Tribunal has considered whether there are 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 of the applicant’s visa.  There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.   

7. On the evidence before it the Tribunal considers the applicant’s breach of condition 8202 of their student visa to be substantial.  The Tribunal considers the initial 13-month period outlined in the decision record that the applicant failed to be enrolled in a registered course of study to be significant. The Tribunal has noted the applicant’s oral evidence and his previous written submission to the delegate concerning his failure to meet the conditions of his visa and his explanation concerning the circumstances of the breach.  Since the delegate’s decision to cancel his visa over two years ago the applicant states he has not enrolled in any other course other than an English language course he dropped out of after a fortnight.  The applicant indeed has stated plainly to the Tribunal that even if the Tribunal were to not cancel his Student visa, his family in Vietnam are no longer able to afford to pay his Student costs.  The Tribunal considers the reasons the applicant has provided it for his long-term non-enrolment are vague, lacking in detail and without corroborative support. The Tribunal recognises the applicant’s current [situation] over the last six months have precluded any attempt to rectify the requirements of his visa pertaining to enrolment in a registered course.  Based upon the evidence and oral testimony of the applicant however, the Tribunal has no reason to believe he will make any future attempt to comply with the conditions of his 573 Student visa and reenrol in a registered course.  The Tribunal has considered the applicant’s explanation as to the circumstances of the breach of his Student visa conditions and does not consider these factors in any way constitute a reason for the Tribunal to exercise its discretion and not cancel the visa.  The Tribunal has determined on the basis of the information before it that the visa should be cancelled. 

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

DECISION

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

Justin Owen
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.