VU (Migration)

[2019] AATA 2558

VU (Migration) [2019] AATA 2558 (6 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hai Anh VU

CASE NUMBER:  1834920

HOME AFFAIRS REFERENCE(S):           BCC2018/4051129

MEMBER:Christine Kannis

DATE:6 July 2019

PLACE OF DECISION:  Perth

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

Statement made on 06 July 2019 at 12:49pm

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 – purpose of visa not fulfilled – non-refoulement obligations – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
BCR16 v MIBP (2017) 248 FCR 456
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 November 2018 made by a delegate of the Minister for Home Affairs 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 18 June 2019 to give evidence and present arguments.  

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. 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

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Did the applicant comply with Condition 8202?

8. On 25 January 2016 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

9. The delegate referred to information from the Provider Registration and International Student Management System (PRISMS) showing the applicant has not been enrolled in a registered course of study since his 14 July 2017.

10. The Tribunal had regard to PRISMS and noted the applicant’s enrolment in a Bachelor of Engineering (Instrumentation, Control and Automation) was cancelled on 14 July 2017 and his enrolment in a Diploma of Science (Engineering Studies) was not cancelled until 14 August 2017.

11. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a Higher Education Sector course on 14 July 2017 and ceased to be enrolled in a registered course on 14 August 2017. The Tribunal finds that he breached condition8202(2)(a) of his visa.

12. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

13. 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’, as set out below.

14. On  31 October 2018 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

15. The applicant did not respond to the NOICC.  Initially he told the Tribunal he did not know he had to respond to the NOICC. The Tribunal pointed out that the NOICC stated he must respond within 5 working days. He said at first he thought the NOICC was a scam but when his visa was cancelled he discussed the matter with his lawyer. His lawyer said he would look after it but he did nothing.

16. The Tribunal asked the applicant the reason he ceased study and ceased to be enrolled. He said when he came to Australia in 2017 everything was new to him.  He discussed his visa options with friends of his landlord and one of these friends advised him to apply for a Protection visa which would enable him to stay in Australia and obtain an education at a lesser cost than he had to pay as the holder of a Student visa. This friend also told him that he would be able to apply for Medicare benefits if he was granted a Protection visa.

17. The applicant said this friend told him that if he stopped studying for three months his Student visa would be cancelled and he could change to a Protection visa. After three months his Student visa wasn’t cancelled and the friend advised him to appeal the Protection visa decision to the Court and apply for Bridging visas.

18. The Tribunal asked the applicant whether he contacted the Department about his visa options. He said he did not contact the Department.

19. The Tribunal put to the applicant that when he was granted the Subclass 573 visa he would have been informed of the conditions that attached to his visa at the time of the visa grant.  He conceded he had read the conditions and was aware of the requirement to remain enrolled in a registered course.

20. The Tribunal noted that nearly 16 months elapsed from the date his enrolment in the Higher Education Sector course was cancelled until the NOICC was issued. The applicant conceded that he was aware he was breaching a condition of his visa during the 16 month period.

21. The applicant told the Tribunal that in March 2018 he wanted to enrol in a registered course. He said he used a “middle person” for visa matters. He paid this person $20,000 to introduce him to a lawyer who would apply for the Protection visa. He used two lawyers and they both abandoned their practices and ran away. He also said the lawyer promised to help him enrol. The Tribunal asked the applicant the reason he didn’t go directly to the education provider to discuss enrolment as it appeared that his visa had not been cancelled at the time he wanted to enrol. He said he lost a lot of money paying the “middle person” and he was confused and did not want his family to know about the lost money.

22. When asked about the hardship that may result from cancellation of his visa the applicant said he will have regrets because he came to Australia at 19 and he is now 23 and has no qualification from his study here. He said he would have wasted his time and his family will also be sad if his visa is cancelled.

23. The Tribunal asked the applicant whether any other hardship would be caused by cancellation of his visa. He said after living in Australia for several years it would be difficult to resume life in Vietnam. He said studying in Vietnam would be difficult because people start studying at 18 and by 23 they are working in established jobs.

24. When asked what he has been doing since cancellation of his visa some eight months ago he said he said he has been socialising with friends and seeking advice about how to return to study. His family have been sending him money from Vietnam to pay his living expenses.

25. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

26. The applicant told the Tribunal his purpose in coming to Australia was to explore a new country, to know a country other than Vietnam and to do some study. He said the standard of education in Australia is superior to Vietnam. He studied Engineering in Vietnam for two years. His uncles and an aunt in Vietnam work in the Electrical Engineering field and he hopes to work with them.

27. At the time the NOICC was issued the applicant had not been enrolled in a registered course for nearly 16 months.

28. The delegate noted that the on 5 June 2017 the applicant applied for a Subclass 866 Protection visa which was refused on 29 November 2017. On 20 December 2017 he applied for a review of the decision and he currently is awaiting a hearing date.

29. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. 

30. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. In response he said his parents have suggested he go to Japan but he would prefer to remain in an English speaking country. 

31. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

32. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this some weight in his favour.

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

33. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to his family and that he would like to remain in Australia however it is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

34. Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

35. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant said he ceased to be enrolled because he was advised that a Protection visa would allow him to stay in Australia, that his study would cost less and that he would be able to access Medicare benefits.

36. The applicant deliberately ceased study because he believed a Protection visa had more to offer him. He conceded he was aware that he was in breach of the condition to remain enrolled in a registered course during the 16 month period preceding the issuing of the NOICC.

37. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case. The Tribunal finds this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the department

38. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

39. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

    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

40. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh 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

41. The Tribunal is aware that the applicant has sought a review of the decision to refuse a Subclass 866 Protection visa. At the commencement of the hearing the Tribunal informed the applicant that the matter before it was the cancellation of his Subclass 573 visa and not the refusal of the Protection visa.

42. The Tribunal invited the applicant to discuss the hardship he would face in returning to Vietnam. Despite being specifically questioned about any potential hardship the applicant did not mention any fear of harm or persecution. He said life as student would be difficult because he would be older than the other students.

43. Having carefully considered Australia’s non-refoulement obligations and noting that the applicant’s claims at hearing, the Tribunal is not satisfied that the applicant would face treatment of a kind that would be contrary to Australia’s non-refoulement obligations under the international instruments to which it is a signatory. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to an international instrument or any obligations accorded by customary international law that are of a similar kind.

44. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. There is no suggestion that the applicant is prevented from validly applying for or being granted a protection visa by s.48A of the Act or because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456. The Tribunal therefore gives this no weight in the applicant’s favour.

    Any other relevant matters

45. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

    Conclusion

46. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8202 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking the study for which is visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

47. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.