Vu (Migration)

[2023] AATA 4609

Vu (Migration) [2023] AATA 4609 (8 December 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Le Khanh Toan Vu

CASE NUMBER:  2216202

HOME AFFAIRS REFERENCE(S):           BCC2022/2212163

MEMBER:  Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:          8 December 2023 at 10:17 am (NSW time)

DATE OF WRITTEN RECORD:                1 February 2024

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal affirms the decision under review.

Statement made on 01 February 2024 at 12:14pm

CATCHWORDS
MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – study history in home country and Australia – previous enrolment cancelled and long period of non-enrolment – course progress, online learning, relationship difficulties, father’s death and COVID restrictions – new enrolment in different subject area after receiving department’s notice – no evidence of career plan provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

APPLICATION FOR REVIEW

Introduction

1. This is an application to review a decision of a delegate of the Minister for Home Affairs, who, on 26 October 2022, cancelled the applicant’s Class TU Subclass 500 Student visa under Sec 116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate found that the applicant had not been enrolled in a registered course of study during the period from 27 May 2020 until 23 September 2022, was thus in breach of condition 8202(2)(a), a fundamental and mandatory condition in a student visa of the kind granted to him on 10 January 2020, and that his visa should be cancelled because of that breach.

3. At the hearing on 8 December 2023, I made an oral decision to affirm the delegate’s decision and gave an oral statement of reasons for it.

4. An appeal from that decision has been filed in the Federal Circuit Court and is currently awaiting a direction hearing.

5. I thus set out below the written record of my oral reasons.

STATEMENT OF REASONS

Background, procedural and documentary aspects

1. The applicant filed his Review application on 4 November 2022 and is within time.

2. There is no issue in this review that the visa was granted to the applicant on condition 8202, nor is there any issue that the delegate was entitled to find that he was in breach of it during the specified period and that there were grounds on which his visa could be cancelled. The only issue on the review, therefore, is whether the visa should be cancelled.

3. In addition to filing the Review Application he provided other supporting documents which included an undated statement in which he sought to explain, among other things, his long period of non-enrolment. He also provided, at that time, two COEs which confirm that, on 23 September 2022, he enrolled in a package of Hospitality courses at the Gamma Institute which consisted of a Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management. A letter of offer relating to a marketing package at the Business

   Institute of Australia (BIA), which he accepted in or about October 2019, was also provided. I will come back to look at this material in more detail shortly.

4. The applicant did not respond to the Hearing Invitation, but he did participate in a Test Session with the Hearings Team which took place on 24 November 2023 and he has appeared today, 8 December 2023, to give oral evidence at the hearing via video. He gave his evidence in English over a period of about 50 minutes. He appeared to me to have reasonably good understanding of spoken English. An interpreter was not requested and was not required. He did not have a representative to assist him.

5. For the most part, he was a responsive witness who appeared to me to be doing his best to answer my questions. There were some occasions when he was tangential, but he seemed nervous at times and I am satisfied that, for the most part, he has given to me a frank account of his circumstances.

1. Although I am prepared to accept much of his oral evidence and documentary case very little of it really assists him for reasons I will come to shortly.

2. In addition to his oral evidence and other material in the Tribunal file, I have also seen a Department file which contains the decision under review, the NOICC, correspondence with the delegate concerning a request for an extension of time within which to respond to the NOICC, a request which the delegate granted, and the applicant’s eventual response sent to the delegate on 23 September 2022 in which he stated that he was enrolled in the Hospitality package at Gamma and, for that reason, wanted another chance to pursue his studies in Australia.

3. He also provided to the delegate a reasonably detailed letter the content of which I will come back to in a moment. The applicant told me today, and I accept, that his letter was written by an agent that he had retained for the purpose of responding to the NOICC. He also told me that the information in the letter was provided by him to the agent and that any information which was not in the letter, but which found its way into the statement he provided to the Tribunal, was because he had not given that information to the agent for the purpose of responding to the NOICC.

4. I have also had access to a PRISMS and Movements Details records the information in which has been discussed with the applicant today. None of the information in these records is controversial.

   The process which led to the cancellation, the evidence he provided to the delegate and my findings on that evidence and the evidence he has given to the Tribunal.

5. The NOICC was sent to the applicant on 12 September 2022. It recites the undisputed fact that the applicant had not been enrolled in a registered course of study since 27 May 2020 when his enrolment in the Marketing package was cancelled, initially for non-payment of fees and ultimately for unsatisfactory progress. At the time the NOICC was issued, therefore, the applicant had not been enrolled in a registered course of study for a period of more than

   2.5 years. This is, as the delegate pointed out, a very extensive breach of the enrolment requirement.

6. In his response letter, the applicant confirmed that he had recently become enrolled in the Hospitality package at Gamma. He then refers to some of his academic history in Australia, namely the Marketing package at BIA, and explains why that did not go anywhere. He did not, as he could and should have done, refer the delegate to his previous academic history in Australia, the fact that he has been here since March 2015, with an initial enrolment in a Bachelor of Arts (Photography) course. I will look at his performance in this course later in these reasons.

7. He began his studies in a CIV at BIA in October 2019 and he asserts in his response letter that COVID presented difficulties for him. He did not like online learning, felt isolated and stressed. He went on to say that he was disappointed with himself because he was unable to continue with his studies in the CIV but along the way realised that Marketing was not a good choice for him because it was a very fast-paced course, or at least that is how I interpret his letter, and that he was exhausted because of that. He accepted, implicitly if not explicitly, that his enrolment in that package was cancelled for unsatisfactory progress in June 2020, which is only about 3 months after COVID first impacted the educational system in Australia.

8. He goes on, in this letter, to explain that after June 2020 he spent a lot of time thinking seriously about his study and career path. He told me today, and I accept, that he was speaking to his parents about his lack of progress and the eventual cancelation of his

enrolments in the Marketing package. His parents, he says, were encouraging him to continue with his studies, evidence which he reiterated at the hearing and which I am prepared to accept.

1. That said, he is not an inexperienced student. He was born in Vietnam in 1988. He studied for a Bachelor of Design in Multi-media Systems before coming out here, a 3-year

   course which he completed in or about late 2014 apparently, this being about the time when he was granted the TU-573 visa to study the Photography course. Moreover, the events which led to the cancellation of his visa first took place about 5.5 years after he arrived here. Even though his parents were encouraging him to study as from about June 2020, this is something which, very obviously, he did not do.

2. He lost his father in May 2021 but could not return to Vietnam to attend his funeral because of the international travel restrictions which were in force in Australia at that time.

3. Although he states in his response letter that he had issues with COVID I do not accept that the pandemic prevented him from engaging in productive study after his enrolment in the Marketing package came to an end in June 2020. Indeed, he does not suggest in his response letter that it did. What appears to have transpired during this period is that he was thinking about what else he could do in the way of but took no steps to become enrolled until after he received the NOICC in September 2022. He goes on to say in his letter that, if he is given another chance, he wants to study Hospitality at Gamma, a package of courses which he had only recently enrolled in.

4. In his decision the delegate considered the usual factors in a Sec 116 cancellation case. I will not pause to consider them in detail. He was obviously concerned about the long period of non-enrolment. He considered, as he was bound to do, what the applicant had said in his response letter. He refers to the COEs which the applicant had provided for the Hospitality package. He accepted that the applicant came out here to study but was not satisfied that his stay in Australia was in line with the purposes of his visa.

5. Absent a sufficient explanation for that, in circumstances where he had not been enrolled in a registered course for about 2.5 years, no other finding could reasonably have been made. He gave significant adverse weight to this factor.

6. The delegate also attributed, as he was entitled to do, significant weight to the extensive period of non-compliance. I see no reason to attribute to this factor any different weight given that I do not accept the applicant’s explanation for his failure to comply with the enrolment condition.

7. He acknowledged that the cancellation would occasion some hardship to the applicant and gave it some weight in his favour. There was evidence before him that the applicant had paid initial tuition fees for his enrolments in the Hospitality package but, in the overall circumstances of this case, it was relatively insignificant. I agree with this finding and with the weight which the delegate attributed to it.

8. The circumstances in which the ground for cancellation arose are also set out in the delegate’s decision, these being based on the content of his response letter. The delegate acknowledged that COVID presented difficulties which affected many students, but it was not a situation which was unique to the applicant.

9. Just pausing here, I note that on-line learning might have been more difficult for some students than it was for others during the pandemic but, as a rule, this is not an acceptable reason for an international student not to engage in productive study. I take notice of the fact

that most providers, including those in this case, switched to on-line learning at an early stage of the pandemic.

1. The delegate went on to say that, even if he accepted the applicant’s explanation, the COVID restrictions were lifted in about October 2021 and it was not for a further 11 months that the applicant took any steps to enrol in the Hospitality package. In short, there was nothing in those circumstances which really assisted him, and he gave that some weight in favour of cancelling the visa. Again, there is nothing in the evidence led in the review to warrant a different finding.

2. So far as his past and present behaviour towards the Department was concerned, although the delegate was prepared to give this a little weight against cancellation, his immigration history suggests to me that the delegate may have been rather generous to the applicant in doing so.

3. The applicant was initially granted a TU-573 visa in November 2014. When that visa expired, in about March 2018, he was granted a TU-500 visa and, when that visa expired in March 2019, he was granted another TU-500 visa which took him through to January 2020 when he was granted the subject TU-500 visa. Thus, by the time the delegate was considering the eventual cancellation, the applicant had been granted no less than 4 Student visas, 3 of which were specifically granted to him to enable him to continue with his studies in the Photography course, which he never completed. This is hardly an impressive immigration history.

4. I asked the applicant about his progress in the Photography course today. He told me, and I accept, that he passed 4 subjects in that course in 2015, his first year of study, but in the years which followed, from 2016 to 2019, he was only able to pass a further 4 subjects. He said to me, and again I accept, that he obtained 6 credits along the way because of his studies in the course he completed in Vietnam, so by the time his enrolment in the Photography course was cancelled for unsatisfactory progress in October 2019, he had completed 8 subjects. He told me that, given the RPL credits, he had only 2 subjects to complete to gain the qualification.

5. He attempted to explain his failure to complete the remaining subjects by saying that he had relationship issues with his wife some of which arose because they were living apart, she was in Sydney he was in Melbourne, but I fail to see how this gets him anywhere. We are here dealing with a period of about 4.5 years. He had been studying the Photography course from March 2015 to October 2019.

6. This, it seems to me, left unexplained, is a very unimpressive academic record. To the applicant’s credit, he accepted as much today in his oral evidence.

7. The delegate went on to consider other matters, these being referred to in the relevant section of the Procedural Instruction Manual, before concluding that the grounds for cancelling the visa outweighed the grounds for not cancelling it.

8. Unfortunately for the applicant, nothing has happened since the cancellation of his visa in late October 2022 which can be said to assist him.

9. In the statement filed in support of his review case the applicant omits important detail regarding his academic history, such as his languid performance in the Photography course. He explains that he had recently procured enrolments in the Hospitality package at Gamma, and he explains why he wanted now to go down that path. He also refers to the Marketing package which he enrolled in during October 2019. He says that the pandemic got in the way of his plans.

1. He refers also to the fact that he and his wife separated when she went back to Vietnam in June 2020. He complains of financial hardship because of this separation, she was in Australia under a work visa apparently, but I am unable to accept his evidence on this in circumstances where they had been living apart and he had been working casually as from about 2020, if not earlier.

2. He also refers, in this statement, to the fact that his father passed away, he does not say when, but he has given oral evidence that his father passed away in Vietnam on

   3 May 2021. He says that he found this destabilising, and perhaps it was for a time, but it is notable that neither of these events, his separation from his wife or his father passing away, were mentioned in his response to the NOICC.

3. Given his other oral evidence today, it seems clear to me that the reason why neither of those events were mentioned is because he did not give that information to the agent and, in these circumstances, I am quite unable to accept the proposition that either of them has any real significance to his failure to maintain enrolment.

4. He also attempts in the statement to explain his choice of study at Gamma by comparing his tuition fees in the Hospitality package with those which would have been payable to BIA for the Marketing package. But as I pointed out to him, according to the COEs, he would have had tuition fees of about $21,000 for the Marketing courses and about $19,000 for the Hospitality package. The difference is hardly significant. I cannot see how his belated switch to Hospitality can be explained on this basis.

5. He told me today, and I accept, that he had been working in various cafes around Sydney from about 2020. He did not identify them, but I accept that he has some work history in the Hospitality field at least until his visa was cancelled in October 2022. But he did not explain to me why, if he has a genuine plan to establish a career in that field, he did not find work in a commercial kitchen at some point. I also notice that neither of the courses which he has enrolled in at Gamma have a cookery emphasis in them.

6. The Diploma and Advanced Diploma at Gamma are management courses which are usually engaged in after a student has completed a CIII and/or a CIV in cookery. There is nothing in the evidence in this case to suggest that the applicant has any interest in pursuing a career as a chef. Management courses in the Hospitality field are usually selected by a student who wants to manage a hospitality business, such as a restaurant or a café, but there is nothing in this statement, nor was there any evidence put before the delegate, to suggest that he has a management career in mind.

7. I cannot be satisfied in a case such as this, involving as it does, a period of non-enrolment spanning some about 2.5 years, that the applicant now has a genuine desire to study these courses at Gamma for the purposes of obtaining knowledge and skills which he could utilise to establish a business of some kind in the Hospitality field. There is nothing in his oral evidence, or in his documentary case, which convinces me that he genuinely has that plan.

8. In these circumstances, I am quite unable to find that the purpose of his remaining in Australia since June 2020 has been in line with his student visas.

9. I accept that the breakdown of his marriage would not have assisted the applicant to maintain focus on his studies in the Photography course. That said, he only had 2 subjects left to complete it. After about 4 years of study in a course which would not have been inexpensive, I would have thought that he would have done whatever it took to finish it, including deferring his studies if his personal circumstances were getting in the way. The fact he took no steps in that direction suggests to me they were not.

1. I find his decision to abandon his studies in that course very perplexing, to say the least. I do not accept that his marital issues were an influential factor in that decision.

2. His decision to enrol in the Marketing package was clearly a mistake but those enrolments were cancelled in June 2020 for unsatisfactory progress in the CIV and a further 2.5 years elapsed before he enrolled at Gamma, after the NOICC was served on him. Absent an adequate explanation, no inference is open to me other than to proceed, as the delegate did, on the basis that his enrolments in that package were indeed procured for strategic reasons.

3. There is just no other satisfactory explanation for this in circumstances where, on his own evidence, he was being encouraged to study by his parents, or one of them.

4. All of these are significant matters adverse to the applicant. There is nothing in the circumstances in this case which ameliorates his position. The pandemic, of itself, is not and never has been a reason for an international student not to study, at least in the absence of credible medical evidence to establish that the student’s ability to study was compromised because of it.

1. As I have already noted, the applicant in this case has not actually suggested that COVID somehow prevented him from engaging in productive studies, he just says that it was a complication for him. Whilst I accept that it may have been I am quite unable to accept that it provides a valid explanation for this extensive breach.

2. I have taken into consideration his work activity in the Hospitality sector but, for reasons already given, do not regard it to be particularly supportive of his case.

3. The Movements Details record indicates that the applicant is no longer a lawful entrant for immigration purposes given that he does not appear to have been granted a Bridging visa when his student visa was cancelled about 14 months ago. I do not know the reasons for this but, in any event, it is not a matter which can assist his review case.

4. The other matters referred to by the delegate were given appropriate weight in the overall circumstances of this case, including the aspect of hardship. There has been a considerable waste of resources in this case and, no doubt, disappointed expectations but the applicant must accept responsibility for these things. I do not regard the aspect of hardship to carry significant weight in his favour.

5. There are other consequences flowing from the cancellation, but these too are relatively peripheral and can attract no or minimal weight in his favour.

   Summary and conclusions

6. This is a clear case for cancellation of the applicant’s visa.

7. The factors I have alluded to and discussed, when given appropriate weight, point inexorably towards cancellation of his visa and clearly outweigh other factors which might be in his favour.

8. In the overall circumstances of the case, I am left with no real option but to affirm the delegate’s decision to cancel the applicant’s visa.

DECISION

1. The Tribunal affirms the decision under review.

Michael Bradford Member