1504590 (Migration)

[2015] AATA 3433

1504590 (Migration) [2015] AATA 3433 (24 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hao SONG

CASE NUMBER:  1504590

DIBP REFERENCE(S):  BCC2015/523047

MEMBER:David McCulloch

DATE:24 September 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 24 September 2015 at 11:04am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 March 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act)

2. The applicant is a national of China born 23 October 1996. He first travelled to Australia on 21 September 2013 as a holder of a TU-573 Higher Education Sector visa.

3. On 12 March 1015 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Act. The applicant provided his response to the NOICC on 27 March 2015. On 31 March 2015 the delegate decided to cancel the student visa held by the applicant under s.116(1)(fa) of the Act because the delegate formed the view that the applicant was not a genuine student.

   The applicant sought review of that decision. The issues that arise on review are:

   1. Does the ground for cancellation exist?
   2. If so, should the visa be cancelled?

4. The applicant appeared before the Tribunal on 9 September 2015 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

7. Under s.116(1) 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 it 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, as set out in the departmental guidelines, Procedures Advice Manual (PAM3).

8. 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, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

9. The proper construction of s.116(1)(fa)(i) was discussed in Shrestha v MIMA (2001) ALD 669, in which the Court held that in introducing s.116(1)(fa)(i), it was not Parliament’s intention that a genuine student who had failed in attendance and/or academic performance due to ‘innocent temporary mishap’ or ‘transient misadventure’ should face cancellation (per Madgwick J at [19]). 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 with lecturers, 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]).

10. 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:

    …

    (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.

11. 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

12. There is nothing before the Tribunal that r.2.43(1d) applies in this case.

13. The primary decision record dated 31 March 2015 (which the applicant provided to the Tribunal) indicates:

    ·since the applicant arrived in Australia on 21 September 2013 he has not undertaken any study at the higher education level for which the visa was granted;

    ·based on evidence in the Provider Registration and International Student Management System (PRISMS), the applicant has not undertaken any study since 4 November 2014;

    ·the only study the applicant has undertaken are English-language courses;

    ·on 11 March 2015 Navitas English Services advised the Department that for six out of the nine English-language classes the applicant completed at the college his attendance was recorded as unsatisfactory (spanning the period September 2013 to September 2014).

14. The primary decision records the applicant responding to the NOICC indicating that his poor attendance rate at Navitas was due to the long distance he had to travel to his classes from his home in Baulkham Hills to the city, which was 31 km. The applicant submitted that when he was late to class he would not join the class until the tea break and he was too shy and felt uncomfortable to speak to the teachers about his reasons for being late.

15. The applicant submitted to the Department three Confirmation of Enrolment (COE) certificates issued by Sydney Institute of Technology. These enrolments were obtained on 25 March 2015:  

    ·   Certificate  IV in Tertiary Preparation Program (to start June 2015)

    ·   Diploma of Business Administration (52 weeks) (to start June 2016)

    ·   Bachelor of Business Administration (to start July 2017)

16. The applicant provided to the Tribunal in advance the hearing documents which are said to relate to the death of his grandparents in-law. A cremation certificate is provided for an individual relating to a cremation on 11 July 2013. A mouring certificate is provided in relation to two individuals indicating dates of placement of July 2013 and February 2014.

17. On the basis of the PRISMS record, the Tribunal finds finds that it is not the case that the applicant was not engaged in any study from 4 November 2014. That system indicates that the applicant was enrolled in three further English courses from 17 November 2014 to 22 May 2015, 15 June 2015 to 17 July 2015, and 3 August 2015 to 4 September 2015.

18. After considering all the evidence, including the evidence given by the applicant in the hearing, the Tribunal is satisfied that the applicant is not, or is not likely to be, a genuine student for the following reasons.

19. First, the applicant entered Australia on a Subclass 573 Higher Education Sector visa which provided a pathway from the study of English, to a Certificate IV, to a Diploma and then to a Degree (the latter being the course required to be enrolled in for the purpose of s.116 of the Act and visa condition 8516). Despite being in Australia for almost two years, the applicant has not progressed beyond English studies. Enrolments for the next phase of studies were not commenced on the first occasion (in November 2014), with re-enrolments at later dates, and then not commenced on the second occasion (in June 2015), as acknowledged by the applicant in the hearing, due to lack proficiency in English.

20. The applicant indicated in the hearing that he is a month or two away from meeting necessary English language requirements . The Confirmation of Enrolment provided by the applicant to the Tribunal with respect to his Certificate IV in Tertiary Preparation Program indicates a condition of the applicant completing an English course, which is equivalent to IELTS 5.5. 

21. The Tribunal has credibility issues with the applicant given the matters raised in point 2 below, and therefore is sceptical at taking the statement that he is on the verge of meeting the necessary English language requirements for the next phase of his studies at face value. The Tribunal noted to the applicant in the hearing, that on the information it had, the applicant was not enrolled in any current or upcoming English course. The applicant said that he had enrolled yesterday. The Tribunal asked the applicant to provide to the Tribunal evidence of this in writing. The applicant provided no information to this effect within the time  frame stipulated by the Tribunal. The Tribunal also suggested to the applicant that he might wish to provide a statement from his education provider attesting that the applicant was making progress in order to meet the necessary English requirements for the next phase of his studies. No such statement was provided by the applicant.

22. The applicant has studied English only, for a period in Australia almost two years, and not progressed with two planned attempts to commence his next phase of study. No evidence has been provided that the applicant is currently enrolled in English studies enabling him to meet the necessary English requirements. The Tribunal is not satisfied that the applicant is on the verge of meeting necessary English requirements for the next phase of his studies. All of these factors suggest that the applicant is not a genuine student in terms of the pathway contemplated by his visa.

23. Second, the applicant’s attendance in English studies for a number of his units, as outlined in the decision of the delegate, has been unsatisfactory. There is only limited information concerning the progress of the applicant’s studies since the delegate’s decision. The Tribunal is not satisfied that the applicant has been credible in his explanation of the difficulties in attendance and/or performance.

24. The applicant brought with him to the Tribunal hearing a certificate from Castle College in the relation to the month-long course undertaken from 3 August 2015 to 4 September 2015. The applicant received a C grade for each module which denotes an inconsistent level of performance but which demonstrates some competence. The applicant had an overall attendance for this course of 86%. The applicant was given a 2 for homework and a 2 for effort. This designates below average performance.  An attendance record for this course was provided following the hearing which confirms an attendance of 86%.

25. The Tribunal asked the applicant at the hearing to provide it with written evidence following the hearing concerning performance in his English courses from 17 November 2014 to 22 May 2015 and 15 June 2015 to 17 July 2015.  The applicant responded in writing that he cannot get his attendance yet, until he finishes. He said that his provider indicated that his attendance was okay. He said he would ask again tomorrow. No further information was provided other than the attendance record relating to the most recent month-long course.

26. The Tribunal does not accept that the applicant was not in a position to provide evidence of his performance or attendance for the prior two courses. This is inconsistent with the applicant being in a position to provide evidence of his performance for the course commencing on 3 August 2015. In the absence of this evidence, the Tribunal is not satisfied that the applicant’s attendance or performance for these two prior units was satisfactory.

27. The applicant, in the hearing, said that the difficulties in his studies were due to his family situation, namely his grandparents passing away. The applicant said that his grandfather passed away in 2014, but could not indicate when. The Tribunal indicated that if this event had such an impact on his studies, it would expect him to remember when it happened. The Tribunal pointed out that relevant documents provided by the applicant indicated the passing away of the person in 2013. The applicant said that this was his grandmother.

28. The Tribunal noted to the applicant that he had made no claim of difficulty in respect to the death of his grandparents in the response to the delegate.  The applicant said that he had a different agent at that point and now has a new agent. The Tribunal put to the applicant that he surely would have told this information to that agent. The applicant said that he did not know it was an issue.

29. The Tribunal put to the applicant that, as difficult as the death of a grandparent might be, it would not generally expect that it would cause a person to be unable to function, on a long-term basis, in their work. The applicant said that he could not focus. He also said that the distance between his home and his school created problems.

30. The Tribunal put to the applicant pursuant to the procedural requirements of s.359AA of the Act information contained in a Test Results Summary for the applicant from Navitas which provides results for the applicant up until August 2014. It notes that the applicant did not put much effort into his studies, he slept in class and was not paying attention, he could produce good results, but lacked motivation to learn, had terrible attendance at the end of his studies, and he failed to provide evidence as to why he had not come to class. His main excuse was that he slept in and stayed up playing videogames. The Tribunal indicated that the information was relevant because it provided no indication that the applicant was suffering difficulties due to the death of his grandparents. It was also relevant because the report indicates that the applicant’s attendance was good at the beginning of the course, which undermines his claim that there were ongoing difficulties in attendance due to the distance. It was noted that the consequence of relying on this information could be to question the truth of the applicant’s claims as to the reason for poor attendance and/or performance.

31. The applicant said that he did not want to mention to his teacher about the death of grandparents. When asked why, he said that he did not think this was a big problem. In relation to course attendance, the applicant said that later he could not sleep at night and this caused him to be late. When the Tribunal indicated that the report indicates that he could not sleep because he was playing computer games, the applicant responded that he did not have a computer. The applicant indicated that he was sleeping because he was too tired and was often only a little bit late.

32. Given the failure by the applicant to raise difficulties concerning the death of his grandparents to either his teachers or to the delegate, the implausibility that the death of a grandparent would prevent a grandchild from focusing on an long term basis on studies, the reasons provided by the applicant’s teacher as to his lack of attendance,  and the fact that the applicant had no attendance problems in the early part of his studies, the Tribunal is not satisfied with the applicant’s claims that lack of attendance and/or poor performance were due to distance having to travel or the death of the applicant’s grandparents. The Tribunal is not satisfied with the truth of the applicant’s claims that when he arrived in class a little late he was too shy to mention his presence to the teacher. The Tribunal considers that the evidence establishes that the applicant was a lazy and inattentive student.

33. The evidence establishes that the applicant had unsatisfactory attendance for the majority of his units for the first year of his English studies. The Tribunal is not satisfied that there are extenuating circumstances for this which were outside of the applicant’s control. There is no evidence before the Tribunal to indicate progress in his English for the two courses undertaken from November 2014 until July 2015. In the absence of evidence, the Tribunal is not prepared to accept that the applicant’s attendance or performance has been satisfactory. The Tribunal accepts that the applicant’s attendance for the recent month-long English course has been satisfactory and his performance has been satisfactory.

34. The Tribunal does not accept the applicant’s explanations for his performance and/or attendance difficulties, namely that they were caused by the death of his grandparents, or distance from his education provider.

35. On the evidence provided, the Tribunal is not satisfied that the applicant has demonstrated satisfactory attendance for anything other than one month of the almost two years over which he has been studying English.  The Tribunal is not satisfied that there are any compassionate or extenuating circumstances which would suggest that difficulties were outside of the applicant’s control. The Tribunal considers that the applicant’s attendance record suggests that he is not a genuine student in his studies of English.

36. Third, the applicant allowed a period where he failed to be enrolled in a requisite Higher Education course which is not consistent with the applicant having a commitment to maintaining the required pathway for his study. In the hearing, the applicant acknowledged that there was a period from 4 November 2014 until 25 March 2015 when he ceased to be enrolled in course for which the visa had been granted. The applicant made no reference to having an offer of enrolment. This constitutes a breach of visa condition 8516, and s.116(1)(b) of the Act, which requires that the applicant is enrolled in, or is the subject of a current offer of enrolment, in a principal course of the kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. For the purpose of the applicant’s study pathway, that required course is the Bachelor of Business Administration. The Tribunal also notes that the enrolment on 25 March 2015 only occurred following the provision of the NOICC to the applicant.

37. The applicant indicated in the hearing said that he was not aware of the requirement to maintain enrolment in the requisite principal course. The applicant also said that he did not enrol because he had not passed his English course. The Tribunal is not making a decision on the basis of the breach of this particular visa condition, but it does consider that the fact that the applicant allowed himself to be in breach for several months is one factor that goes to whether he is in Australia genuinely acting as student on a pathway to the study of a principal course as required by the visa. The applicant’s conduct in enrolling in the requisite course only after the provision of the NOICC might suggest he had little care for his future path of study until reminded of his obligations.

38. For all of these reasons, the Tribunal is not satisfied that the applicant is, or is likely to be, a genuine student either in terms of his English studies, or in terms of the pathway of his studies as required by his visa. The Tribunal is not satisfied that the applicant is on the verge of meeting necessary English requirements, particularly in the absence of evidence provided by the applicant that he is currently enrolled in an English course, and lack of evidence concerning long-term satisfactory attendance and performance in his English studies.

1. The applicant had unsatisfactory attendance for his English course from September 2013 to September 2014. The Tribunal is not satisfied that there are extenuating or compelling circumstances which explain this. No evidence has been provided concerning the applicant’s attendance or performance for the courses from 17 November 2014 to 22 May 2015 and from 15 June 2015 to 17 July 2015 despite the Tribunal being of the view that the applicant would be in a position to provide such information, which was requested by the Tribunal.  Due to this lack of information, the Tribunal is not satisfied that applicant’s attendance or performance was satisfactory. The Tribunal is not satisfied of any of the applicant’s explanations for poor performance or attendance as discussed. The applicant has provided evidence of satisfactory performance and attendance for only the most recent one month of his English studies. Considering that the studies spanned over almost two years and only evidence of one month’s satisfactory performance and attendance has been provided, the Tribunal is of the view that the applicant has not been a genuine student in terms of his English studies. The applicant had a period of not maintaining requisite enrolment or offers as required by his visa. All of these issues suggest a lack of willingness and ability for the applicant to progress with his studies as required by his visa.

2. Considering all of these factors, the Tribunal is not satisfied that the applicant has been a genuine student both in terms of the required pathway of his studies or in terms of his English studies alone.

3. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

   Consideration of discretion

4. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. These matters include the purpose of the visa holder's travel to and stay in Australia; the reason for and extent of the breach; 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; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (ie.consequential cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; whether the cancellation would lead to removal in breach of Australia's non refoulement obligations; and the impact of cancellation on any victims of family violence, if this is a factor.

5. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia in terms of the requirements of the visa. The applicant was required to study on a pathway to a requisite Higher Education course. However, in his two years in Australia, the applicant has only undertaken pathway studies in English and failed to progress, in terms of original timings, to progress to the next phase of studies on two occasions. In addition, for significant periods of the applicant’s attendance in his study of English has been unsatisfactory. The Tribunal finds that the applicant has not fulfilled the purpose of his travel to and stay in Australia given the failure to make meaningful progress  both in his English studies and on his required study pathway and to show a commitment to make progress. If the visa were not cancelled, the Tribunal is not satisfied that the applicant would fulfil appropriate attendance requirements in his English courses or progress to the next phase of the study as required by the visa.

6. The Tribunal’s consideration of the applicant’s circumstances and reasons for the applicant’s poor attendance and/or performance is set out above. The Tribunal has not accepted as credible the applicant’s explanations for his poor attendance or performance as a result of either the death of his grandparents or living a distance away from his school. The applicant indicated in the hearing that he had a poor foundation of English, which the Tribunal accepts.

7. The inability of the applicant to demonstrate an ability or motivation to progress both in his English studies, over a lengthy period, and on the pathway to the required level of study is significant, in the Tribunal’s view. 

8. In the hearing the applicant provided no response as to whether any hardship would be caused by the cancellation. The Tribunal acknowledges that if the visas cancelled, the applicant may not be able to pursue further study in Australia. There will also be limitations on visas that can be applied for onshore. Nothing adverse is known about the visa holder’s past and present behaviour towards the Department. The applicant has not indicated any persons in Australia whose visas would, or may, be cancelled under s.140.  There are no children in Australia whose interests could be affected by the cancellation, or who themselves would be affected by consequential cancellation. There is nothing to suggest, and the applicant does not claim, that Australia’s international obligations would be breached as a result of the cancellation. There is nothing to suggest that family violence is an issue.

9. When asked if there was any other factor the Tribunal should take into account the applicant provided no additional factor.

10. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant is not a genuine student.  He has not progressed on the study pathway required by his visa. He has not provided evidence to suggest he is on the verge of meeting necessary English requirements to progress to the next phase of study. He has not demonstrated satisfactory attendance or performance over the significant majority of his English studies. The applicant has not demonstrated that the various difficulties have been for compassionate reasons or for issues outside the applicant’s control. The Tribunal is prepared to accept that some hardship may be caused by the cancellation. No other person would be affected by the cancellation and there would be no breach of Australia’s international obligations.

11. Balancing all of these factors, with emphasis on the nature and extent of the circumstances of not being a genuine student, and the lack of extenuating circumstances, while accepting some hardship would be caused, the Tribunal considers that the visa should be cancelled.  

12. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

13. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    David McCulloch
    Member