1504455 (Migration)

[2016] AATA 4067

1504455 (Migration) [2016] AATA 4067 (5 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Baldeep Kaur
Mr Hari Harjit Singh

CASE NUMBER:  1504455

DIBP REFERENCE(S):  BCC2014/2794401

MEMBER:Bruce MacCarthy

DATE:5 July 2016

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 05 July 2016 at 9:25am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 March 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the first-named applicant (“the applicant”) is not a genuine student. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the applicant.  The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicant appeared before the Tribunal on 31 May 2016 to give evidence and present arguments.  

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. 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. Relevantly, to this case, these include the ground set out in s.116(1)(fa). 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.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

8. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

9. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

   The applicant’s migration history

10. According to the Department’s records, the applicant first arrived in Australia on 22 March 2008, as the holder of a Subclass 572 Student visa granted on 7 February 2008.  She was granted further Subclass 572 Student visas on 22 April 2008, 9June 2010, 20 September 2010, and 22 November 2011.  She was then granted a Subclass 573 Student visa on 2 December 2013.  Had it not been cancelled, the Subclass 573 visa would have been valid until 10 April 2017.   While holding that visa, the applicant made 2 journeys outside Australia, as follows:

    ·from 2 December 2013 to 8 January 2014; and

    ·from 6 July to 25 July 2015.

    Following the cancellation of her Subclass 573 visa, the applicant has not left Australia.  She now holds a Bridging visa. 

11. At the hearing, the applicant confirmed the migration history in the previous paragraph and agreed that she had spent approximately 8 years in Australia while holding Student visas or related Bridging visas.

    The applicant’s academic history

12. The applicant had 11 enrolments in courses of study in Australia.  These were

    ·an English for Vocational Education (Upper Intermediate) course which ran between 7 April and 27 June 2008.  The applicant finished this course;

    ·A Certificate IV in Hospitality (Commercial Cookery) course scheduled to run between 30 June 2008 and 27 November 2009.  This enrolment was cancelled on 12 February 2009 when the applicant transferred to the course mentioned immediately below;

    ·An Advanced Diploma of Hospitality Management course scheduled which ran between 30 June 2008 and 11 June 2010.  The applicant finished this course, and there is evidence in the Department’s file that she was awarded the qualification.

    ·a Diploma of Management course which ran between 16 August 2010 and 12 August 2011.  The PRISMS records show that this course was “finished” but elsewhere show that the enrolment was deferred or suspended “compassionate or compelling circumstances”. 

    ·an Advanced Diploma of Tourism course scheduled to run between 4 October 2011 and 3 October 2013.  This enrolment was cancelled on 4 December 2013 because the applicant did not commence studies;

    ·an English for General Purposes (Beginner to Advanced) course which ran between 20 January and 14 February 2014.  The applicant finished this course;

    ·a Bachelor of Business course scheduled to run at the Universal Business School Sydney(“UBSS”) between 3 March 2014 and 10 February 2017.  This enrolment was cancelled on 28 April 2014 because the applicant did not commence studies;

    ·an Advanced Diploma of Management course scheduled to run at UBSS between 22 April 2014 and 23 March 2015.  This enrolment was cancelled on 5 August 2014 because the applicant did not commence studies;

    ·a second Advanced Diploma of Management course scheduled to run at UBSS between 11 August 2014 and 19 June 2015.  This enrolment was cancelled, presumably as a result of the cancellation of the visa;

    ·a second Bachelor of Business course scheduled to run at UBSS between 13 July 2015 and 23 June 2017.  This enrolment was also cancelled, presumably as a result of the cancellation of the visa: and 

    ·a third Bachelor of Business course scheduled to run at UBSS between 18 July 2016 and 27 October 2017.  The applicant enrolled in this course on 20 June 2016.

13. The fact that a course is shown in PRISMS records as having been finished does not necessarily mean that the student concerned completed the course successfully.  It simply means that, as at the scheduled end date of the course, the student concerned was still enrolled in that course.  At the hearing, the applicant confirmed that the only course she had successfully completed and gained the relevant qualification was the Advanced Diploma of Hospitality Management course which she completed in June 2010. 

14. She has since provided the Tribunal with evidence that, on the basis of her results in the Advanced Diploma of Hospitality Management course, she has been given exemptions in 6 of the 24 course units of her Bachelor of Business course (the second last and last courses mentioned in the previous paragraph).  This evidence also shows that she has so far been given a grade of “AF” (meaning “Absent Fail (0%-15%)”) in relation to the 4 subjects of that course she had attempted since July 2015.

15. According to the decision record (a copy of which the applicant provided to the Tribunal without comment), the applicant did not complete the Diploma of Management course which ran between 16 August 2010 and 12 August 2011 at the Sydney Business and Travel Academy.  The decision states that, her attendance in the first 4 terms of her study ranged between 67% and 81% and that her last day of study was 17 July 2011. 

16. The applicant has told the Department that her inability to complete the course was affected by a series of illnesses in 2010 and 2011.  She has told the Tribunal that her failure to complete courses since then and to attend regularly has been impacted by a series of serious illnesses, some of which have required surgery. 

17. She said that, initially, she had elected to study for qualifications which might entitle her to seek residency in Australia.  However, by the time she completed her Advanced Diploma of Hospitality Management course, the rules had changed and that qualification was no longer a means of obtaining permanent residence.  Since then, however, she had explored other options and had finally decided to seek a degree level qualification in business with the intention of returning home to India.

18. At the hearing, the applicant told the Tribunal that she now considered herself to be fit enough to attend courses regularly and that she was in the process of obtaining a further enrolment in the Bachelor of Business course.  She subsequently provided a copy of the Confirmation of Enrolment for the last of the courses mentioned in paragraph 12 above.  She also provided evidence that, on the basis of her results in the Advanced Diploma of Hospitality Management course, she has been given exemptions in 6 of the 24 course units of her Bachelor of Business course (the second last and last courses mentioned in the previous paragraph).  This evidence also shows that she has so far been given a grade of “AF” (meaning “Absent Fail (0%-15%)”) in relation to the 4 subjects of that course she had attempted since July 2015.

19. The Tribunal has since sought comments from the education provider concerned regarding the applicant’s enrolment.  UBBS have provided evidence that they have received a number of medical certificates from the applicant and that, notwithstanding her low level of attendance, the College had granted the applicant an extension on her current enrolment until October 2017 “on personal and compassionate grounds.”  They have advised that the they met with the applicant in person and supported her request for an extension conditional on successful completion of future units and satisfactory attendance.  This decision was “influenced by her recent medical troubles.”

20. With 2 brief exceptions the applicant has been in Australia for more than 8 years, in which time she has achieved only one substantive qualification, that having been gained some 6 years ago.  The Tribunal is satisfied that, at least until June 2010, the applicant was a genuine student.  Her attendance at courses of study since then has been quite low and, had there been no medical evidence, the Tribunal would have regarded her lack of academic achievement and her poor attendance as an indication that she was no longer a genuine student.

21. However, the Tribunal is conscious that the applicant has had an exceptional run of poor health, as evidenced by the medical certificates submitted to her current course provider submissions and evidence provided to the Department and the Tribunal.  It has considered whether the applicant’s long run of poor health might be an indication that the applicant is not a genuine student because she is incapable of study for health reasons and his only remaining in Australia to secure medical treatment which might be much more expensive in her home country.

22. Given that the course provider has agreed, in the light of medical evidence, to extend the applicant’s enrolment (conditional upon satisfactory attendance and successful completion of course units, the Tribunal considers it appropriate to give the applicant the benefit of the doubt.  It is therefore not satisfied that the applicant is not or is likely not to be, a genuine student.

23. In reaching this conclusion, the Tribunal notes that the visa is due to expire in approximately 9 months.  If the applicant does not diligently applied herself to her studies in that period, or if she continues to be absent because of medical problems which she told the Tribunal have now ended, she risks cancellation of her enrolment by the course provider and/or the refusal of an application which would have to be made for a further visa for a further visa when her current visa expires. 

24. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(fa)(i) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

26. The Tribunal has no jurisdiction with respect to the second named applicant.

    Bruce MacCarthy
    

    Member

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.