Vu (Migration)

[2019] AATA 6235

Vu (Migration) [2019] AATA 6235 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Quoc Lam Vu

CASE NUMBER:  1909457

HOME AFFAIRS REFERENCE(S):          BCC2019/278954

MEMBER:P. O'Farrell

DATE:4 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 October 2019 at 1:11pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – limited academic progress – no deferment of studies sought – plans for employment in Australia – decision under review affirmed   

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the grounds for cancelling the visa outweigh the reasons for not cancelling. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 8 August 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

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)

2. In the present case, the applicant’s visa was cancelled on the basis the applicant had not complied with condition 8202(2).  The delegate stated that the applicant had not been enrolled since March 2018.

3. At the hearing, the applicant agreed that there were grounds for cancellation.

4. The Tribunal finds that the applicant had not complied with condition 8202(2) that  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

5. 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

1. The applicant is a Vietnamese nation born on 10 November 1997.

2. He arrived in Australia on 1 August 2013.

3. Since arriving in Australia, the applicant has undertaken Year 11 and 12 schooling (VCAL).

4. He also undertook a course in General English.

5. After secondary school, he gave evidence that his Agent arranged for him a package of enrolments including:

   i.Certificate III in Commercial Cookery

   ii.Certificate IV in Commercial Cookery

   iii.Diploma and Advanced Diploma in Hospitality Management.

6. He gave evidence at the hearing that he did not complete any of these courses.

7. At the date of the NOICC on 19 March 2019, the applicant has not been enrolled since 19 March 2018.

8. On 25 March 2019, a Certificate of Enrolment for the application was provided for a Diploma of Leadership and Management course at the Albright Institute to commence in July 2019.  At the hearing, the applicant gave evidence that in the event that his visa is not cancelled, that he would intend to study Business Management.

9. The applicant also gave evidence that he wants to obtain a stable skilled job in Australia and to help his siblings to come to Australia.

10. The Tribunal acknowledges that the applicant’s initial purpose of travel to Australia was for the purpose of study. 

11. The Tribunal finds that the failure of the applicant to maintain enrolment is not consistent with the purpose of the applicant’s travel and stay in Australia for the purpose of study nor is his evidence that he wants to obtain a stabled skilled job in Australia and to help his siblings to come to Australia to study.  The Tribunal finds that the applicant’s conduct has demonstrated that he has not been committed to study for a long period of time and does not accept that the visa holder has a compelling need to remain in Australia.  The Tribunal gives weight to this factor in favour of cancellation of the visa.

• the extent of compliance with visa conditions

1. The applicant was granted a TU500 visa for the purpose of study.  The study visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted and remain compliant with student visa obligations, the visa holder must maintain enrolment.

2. The applicant has not complied with the condition attached to his visa as he has not been enrolled in a full-time registered course of study for over a year at the time of the NOICC.  

3. The applicant subsequently obtained a Certificate of Enrolment for a course to start at a later time.  The Tribunal gives this limited weight in favour of not cancelling the visa.

4. The Tribunal consider that the breach of condition 8202(2) here is significant, having been for a long period. I therefore give the lengthy breach of condition 8202 some weight towards the visa being cancelled.

5. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from 8202.  The Tribunal gives some weight towards the visa not being cancelled in this respect.

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

1. The applicant gave evidence that if the visa is cancelled, his family will be very sad because it will have lost money that it has put into his studies.  He would need to return to Vietnam and his family would be disappointed because it had hoped that he would obtain a good stable skilled job in Australia in order that later on, he could help his siblings come to Australia to study.  He also gave evidence that he would need to leave his partner and that he did not want this to happen.

2. The Tribunal accepts that there may be some hardship to the applicant, his partner and his family if the visa remained cancelled. However, I do not accept, on what he has said and the information before me, that such hardship is significant and I give this only little weight towards the visa not being cancelled.

• circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

1. The grounds for cancellation arose because the applicant failed to maintain enrolment in a full-time registered course of study.

2. In his response to the NOICC, the applicant described difficulties with his cooking course and thought that he needed to be more creative if he was to be a good chef.  He stated that he was homesick and found it challenging to stay in Australia without a companion.  He stated that he tried to study hard but his homesickness make him upset.  He also mentioned that he tried ‘harder to overcome this depressive and concentrate on’ his study but that he was unable to comprehend the information given out by lecturers.  He stated that he has recently felt better and that his family supports him to continue with study.  At the hearing, he stated that the found the studies boring.

3. The applicant provided no medical evidence or the like to suggest that was suffering any medical conditions at the time.  Nor did the applicant provide any evidence to suggest that the applicant sought assistance from the education provider or sought to defer his studies.

4. The Tribunal finds that, taking the materials and evidence into account, that there are no relevant circumstances in this case that could lead to a conclusion that the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

• past and present behaviour of the visa holder towards the department

1. The delegate report states that the applicant has been cooperative in his dealings with the Department.  The Tribunal gives this some weight in favour of the visa not being cancelled.

• whether there would be consequential cancellations under s.140

1. There would be not consequential cancellations under section 140 as a result of cancellation.

• 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

1. The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia, and it may be difficult to be granted further visas, and he may be subject to a three-year exclusion period unless relevant Public Interest Criterion is met.

2. It is unlikely however that the visa applicant will be detained but rather provided with a time-limited period in which he can leave the country or apply for review of the decision.

• 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

1. The circumstances of this matter are not such that would engage Australia’s international obligations.

• if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. Not relevant.

• any other relevant matters.

1. The Tribunal has carefully considered the evidence of the applicant and finds that he has not provided any other relevant matters that go to the visa not being cancelled.

2. 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.

   P. O'Farrell
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202

   (1) The holder must be enrolled in a full time course of study or training if the holder is:

   (a) a Defence Student; or

   (b) a Foreign Affairs student; or

   (c) a secondary exchange student.

   (2) A holder not covered by subclause (1):

   (a) must be enrolled in a full time registered course; and

   (b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

   (c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

   (ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a) is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b) changes their enrolment to a course at the Australian Qualifications Framework level 9.