Pham (Migration) [2019] AATA 5765 (23 August 2019)

Last Updated: 13 January 2020

Pham (Migration) [2019] AATA 5765 (23 August 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Tuyet Nhi Pham

CASE NUMBER: 1830925

HOME AFFAIRS REFERENCE(S): BCC2018/2432797

MEMBERS: Dr Jason Harkess

DATE: 23 August 2019

PLACE OF DECISION: Melbourne

DECISION: The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa and, in its place, substitutes a decision not to cancel the visa

Statement made on 23 August 2019 at 2:51pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Bachelor of Tourism and Hospitality – not enrolled in registered course – enrolment cancelled – non-commencement of studies – psychological distress – family issues – extenuating circumstances – decision under review set aside

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

[1] The Applicant is a citizen of Vietnam and is currently 22 years of age. She seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 15 October 2018 cancelling her Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).
[2] The Applicant’s student visa was granted on 11 May 2016 with an original expiry date of 15 March 2020, providing for more than almost four years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. The visa was granted on the basis that the Applicant was enrolled in and would successfully complete a number of courses, including an English course, followed by a Diploma, and then a Bachelors degree.
[3] The delegate cancelled the Applicant’s visa on the basis that she had breached that condition of the visa which required her to continue to be enrolled in a registered course of study.
[4] The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
[5] The Applicant appeared before the Tribunal on 16 August 2019 to give evidence and present arguments. She was assisted by her registered migration agent, Mr Michael Cai. The hearing before the Tribunal was conducted with the assistance of an interpreter of the Vietnamese and English languages.
[6] For the following reasons, the Tribunal has decided to set aside the decision to cancel the visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

[7] The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), as they then were, when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

[8] Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 8 October 2017 to 15 October 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 12 months during which the Applicant was alleged to be in continuous breach of the visa.
[9] The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).^[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously been enrolled and the reasons for doing so.
[10] The PRISMS report obtained by the delegate indicated that the Applicant’s course provider had cancelled her enrolment in a Bachelor of Tourism and Hospitality course on 8 October 2017 due to the Applicant not commencing her studies.
[11] The Department of Home Affairs wrote to the Applicant on 17 September 2018, notifying her of its intention to consider cancelling her student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of Condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel her visa. She did not respond to the NOICC.
[12] At the hearing before the Tribunal on 16 August 2019, the Applicant admitted that she had breached Condition 8202 of her visa for the period alleged by the delegate.
[13] Accordingly, on the evidence, the Tribunal is satisfied that the delegate was correct in finding that the Applicant had breached condition 8202(2)(a) of her student visa for the period of time that was alleged.

Consideration of Discretion to Cancel Visa

[14] 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 the Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (‘PAM3’, ‘General Visa Cancellation Powers’). The matters that ought to be considered are specifically listed in PAM3 as follows:

• the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);
• the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether she has a compelling need to remain in Australia;
• the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;
• the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;
• the Applicant’s past and present behaviour towards the Department (eg, whether they have been truth and co-operative in their dealings with the Department);
• whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;
• whether there are mandatory legal consequences arising from a decision to cancel the visa;
• whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202

[15] The thrust of the Applicant’s submissions at the hearing before the Tribunal was that she was suffering psychological distress which led to her ceasing her studies in Australia. In about October 2017, the Applicant became aware that her parents, who remained in Vietnam, were having problems with their relationship. They were contemplating separation. Her younger brother, who has some health problems, had relayed to the Applicant his own perspective while he also remained in Vietnam.
[16] In support of the Applicant’s claim, she produced a report dated 7 August 2019 from Dr Michael King, a psychologist based in Sunshine, Melbourne. The report is reasonably comprehensive and provides an independent retrospective assessment of the Applicant’s mental health during the time the Applicant was in continuous breach of her visa.
[17] Dr King observed that, at the time of her non-compliance with her visa condition, she was only 20 years old and on the cusp of entering adulthood. He stated further:

[T]his step towards emotional and social independence was at that stage impacted by the interaction of her transfer to a geographically and cultural different situation, and the almost inevitable psycho-emotional response to such a disruption to ‘normal’ developmental trajectory is a phase of social regression in which the fledgling adult emotionally reverts to a ‘more family-dependent’ state of mind. In this situation the impending disruption to her notion of parental stability was much exaggerated in terms of its effect.

[18] Dr King concluded that the Applicant would have had an ‘elevated anxiety status and corresponding incapacity to “get on with things” which resulted from this sense of “loss of family structure”’.
[19] Dr King further stated that the Applicant is now on the road to recovery, her condition having been temporary, and further noted that the Applicant had reported that her parents had reconciled. This was confirmed in evidence by the Applicant in the course of the hearing before the Tribunal.
[20] The Tribunal accepts the evidence of Dr King as providing a satisfactory explanation for the Applicant’s breach of Condition 8202. The Tribunal finds that there were extenuating circumstances that led to the Applicant ceasing her studies.

Purpose of Applicant’s Stay in Australia

[21] The purpose of the Applicant’s stay in Australia remains as a temporary international student. Given Dr King’s assessment that she is now in a position to progress with her studies, unimpeded by the mental difficulties that she was having to grapple with, that purpose can be served if she is permitted to stay in Australia.

Extent of Applicant’s Compliance with Visa Conditions

[22] Beyond the matter concerning the current breach of Condition 8202, there is no material before the Tribunal indication that she has breached any other visa conditions of this visa or any previous visas.

Hardship

[23] The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete her education. The Tribunal considers it would be unduly punitive to cancel her visa in the circumstances outlined above, and also taking into account her relative youth.

Applicant’s Behaviour towards Department

[24] The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

[25] There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

[26] The Tribunal notes that if her visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if she does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting her options to apply for further visas from within Australia. She will also be subject to a three-year exclusion period where she will not be eligible to have any temporary visa application approved if she applies for a visa that requires Public Interest Criterion 4013 to be met.
[27] The Tribunal considers these consequences to be unduly punitive in the circumstances of this case.

International Obligations

[28] The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

[29] In all the circumstances, the Tribunal considers the Applicant’s visa should not be cancelled.

DECISION

[30] The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa and, in its place, substitutes a decision not to cancel the visa

Dr Jason Harkess
Member

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^[1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].