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1413304 [2014] MRTA  2833  (3 December 2014)

Last Updated: 13 January 2015

1413304  [2014] MRTA 2833  (3 December 2014)

DECISION RECORD

APPLICANT: Mr Thanh Phat DO

MRT CASE NUMBER: 1413304

DIBP REFERENCE(S): BCC2014/1487849

TRIBUNAL MEMBER: Adam Moore

DATE OF ORAL DECISION: 3 December 2014 at 11:10am

DATE OF WRITTEN STATEMENT: 3 December 2014

PLACE OF DECISION: Melbourne

DECISION: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 December 2014 at 1:55pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 July 2014 made by a delegate of the Minister for Immigration 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 creased to be enrolled in a registered course of study from 18 December 2013, in breach of Condition 8202(2)(a) imposed on 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.
3. The Tribunal gave its decision on the review at the conclusion of the hearing held on 3 December 2014. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The Tribunal took evidence from the applicant and also from his sister.
4. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.
5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

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. The applicant provided to the Tribunal a copy of the primary cancellation decision.
9. At the hearing I asked if he agreed that he was not enrolled from 18 December 2013. He said he did.
10. It is, therefore, a simple matter to find 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

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.
12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).
13. These factors are:
    • the purpose of the visa holder’s travel to and stay in Australia;
    • if the cancellation is being considered for breach of a visa condition - the reason for, and extent of, the breach. The guidelines state that as a rule, a visa should not be cancelled where the breach of visa condition occurred in circumstances beyond the visa holder’s control;
    • the degree of hardship that may be caused to the visa holder and any family members;
    • the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa);
    • the visa holder’s past and present behaviour towards the Department (for example, whether a person has been truthful in statements or applications made to the Department or have previously complied with visa conditions);
    • whether there are persons in Australia whose visas would, or may, be cancelled under s.140;
    • whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as children in Australia whose interests could be affected by the cancellation or removal would result in a breach of Australia’s non-refoulement obligations;
    • the impact of cancellation on any victim of family violence, or if family violence is a factor;
    • any other matters raised by the visa holder.
14. The applicant’s representative made written submissions to the Tribunal. Much of this material was directed to advance the applicant’s case for the grant of a further student visa if the visa is not cancelled. Attached were documents that went to the applicant’s current financial position, the fact of his parents having suffered financial hardship in the past and an offer/enrolment for a new course. The representative argued that the applicant is a genuine student.
15. I accept that the applicant’s purpose when he came to Australia was to study. I note he completed an ELICOC course with good marks and excellent attendance. He is still a very young man.
16. The applicant’s evidence is that the reason for the breach of the enrolment condition was because he could not pay his tuition fees because his mother in Vietnam was suffering financial difficulty. There is independent evidence to support this in the form of a declaration by his mother endorsed by the People’s Committee of his Ward in Ho Chi Minh City. The applicant told me that his father passed away in 2010 and his mother has since been supporting his whole family. He is the youngest of five children.
17. The applicant’s representative clarified in oral submissions that due to general economic circumstances in Vietnam, his mother’s real estate business was adversely affected so that she could not provide to him, at the relevant time, money to pay his fees. I accept this evidence.
18. However as I explained to the applicant, applicants for student visas must declare and demonstrate that they have sufficient funds to pay their course fees and living costs while they hold the visa.
19. In my assessment these matters balance each other out. In other words, when considering the reason for the breach of condition against the requirement for a student to demonstrate financial capacity on application, I am not persuaded these matters move me to either to cancel, or not to cancel the visa.
20. When I asked the applicant about hardship factors, I accept that cancellation of the visa would mean that his mother’s previous financial expenditure would be wasted, and it would cause him significant personal and cultural hardship if he were required to return to Vietnam without obtaining the qualifications he seeks. I also take into account in his favour that he is not an international student who has been in Australia for many years with a lengthy poor enrolment or study history.
21. There is no evidence of any adverse interactions with the department in the past.
22. I accept that if the visa is not cancelled and he successfully applies for a new student visa that he and his mother appear to be in a position to provide the required financial support (of course, this is a matter for the delegate who considers any new application).. The applicant assured me that if he obtains a new student visa that he will study hard and obtain his qualification. The applicant also assured me that he would comply with any conditions imposed on any visa granted to him. The applicant’s representative clarified that it is the applicant’s instructions that he plans to obtain that business qualifications so that he can go home to help with the family business. I note in this regard he has obtained an offer for a package of courses leading to a Bachelor of Business.
23. The applicant’s sister gave evidence to me. She assured me that all of her family will support the applicant to successfully complete his studies.
24. Considering the circumstances as a whole, I conclude that the visa should not be cancelled.

DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.
    

Adam Moore
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.