1507315 (Migration)

[2016] AATA 3196

1507315 (Migration) [2016] AATA 3196 (9 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuyang Wang

CASE NUMBER:  1507315

DIBP REFERENCE(S):  BCC2015/537188

MEMBER:Bruce MacCarthy

DATE:9 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 09 February 2016 at 9:24am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 May 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 delegate cancelled the visa under s.116(1)(fa)(i) on the basis that 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. The applicant appeared before the Tribunal on 19 January 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 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?

6. 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.

7. 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]).

8. 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

9. The applicant has submitted his passport for the Tribunal’s perusal.  Entries in the passport outline are consistent with the Department’s record of his migration history, although there is no record in his passport of any visa other than the one with which he arrived in Australia.  He told the Tribunal that these visas were not entered into his passport, but he received notification of them by email.  The Tribunal accepts this explanation.  The passport does not contain exit stamps relating to his last three departures from Australia, but other stamps show corresponding entries to other countries on the relevant dates.

10. He first arrived in Australia on 21 December 2010, as the holder of a Subclass 575 Student visa granted on 14 December 2010.  That visa was valid until 30 August 2012.  While holding that visa, he made 4 journeys outside Australia, as follows:

    ·from 21 June to 9 October 2011;

    ·from 15 December 2011 to 3 January 2012;

    ·from 15 April to 28 May 2012; and

    ·from 26 July to 29 August 2012.

11. He applied for a Subclass 573 visa on 29 August 2012, and was granted a Bridging visa which expired when he was granted a Subclass 573 visa on 27 September 2012.  This visa, originally valid until 15 March 2016, is the visa that was cancelled on 25 May 2015.  As the holder of this visa, the applicant made a further 4 journeys outside Australia, as follows:

    ·from 27 November 2012 to 9 March 2013;

    ·from 7 July to 9 September 2013;

    ·from 11 December 2013 to 1 September 2014; and

    ·from 15 February to 1 March 2015.

    Following the cancellation of his Subclass 573 visa, the applicant has not left Australia.  He holds a Bridging visa.

    The applicant’s academic history

12. According to the decision under review, a copy of which the applicant provided to the Tribunal, PRISMS records show that the applicant did not study in a registered course in the period 6 October 2012 to 12 May 2013 and in the period 13 March to19 October 2014.  The decision also stated that, although the applicant had been enrolled in 2 courses of study scheduled to run consecutively between October 2014 and March 2015, he did not commence either course with the effect that he had not studied in a registered course of study between March 2014 and May 2015.  The decision further states that the applicant had not been enrolled in any course of study appropriate to his Subclass 573 visa between March 2014 and May 2015.

13. PRISMS records seen by the Tribunal indicate that the applicant has had 21 enrolments in courses of study in Australia.  These were

    ·an English language preparation course scheduled to run between 20 December 2010 and 1 July 2011.  This enrolment was cancelled on 22 June 2011 on the basis that the applicant was to transfer to a course at another course provider;

    ·a University Foundation course scheduled to run between 18 July 2011 and 30 June 2012.  This enrolment was cancelled on 22 June 2011 on the basis that the applicant was to transfer to a course at another course provider;

    ·an Academic English course scheduled to run between 14 November 2011 and 3 February 2012.  The applicant “finished” this course;

    ·a Diploma of Business (Standard) course scheduled to run between 6 February 2012 and 25 January 2013.  This enrolment was cancelled on 22 May 2012 because the applicant did not commence studies;

    ·a second Academic English course which ran between 6 February and 9 March 2012.  The applicant enrolled in this course on 8 February 2012 and “finished” it;

    ·a third Academic English course which ran between 12 March  and 13 April 2012.  The applicant “finished” this course;

    ·a second Diploma of Business (Standard) course scheduled to run between 4 June 2012 and 24 May 2013.  This enrolment was cancelled on 14 June 2012 because the applicant did not commence studies;

    ·a fourth Academic English course which ran between 25 June and 27 July 2012.  The applicant enrolled in this course on 25 June and “finished” it;

    ·a fifth Academic English course which ran between 3 September and 5 October 2012.  The applicant enrolled in this course on 29 August 2012 and “finished” it;

    ·a third Diploma of Business (Standard) course scheduled to run between 2 October 2012 and 20 September 2013.  This enrolment was cancelled on 8 November 2012 because the applicant did not commence studies and his fees were refunded on 24 May 2013;

    ·a General English language course scheduled to run between 29 October 2012 and 4 January 2013.  This enrolment was cancelled on 6 August 2012 because of a “Change to CoE/Student details” when he enrolled in a similar course commencing approximately a year later (see below). 

    ·an Advanced Diploma of Tourism course scheduled to run between 13 May 2013 and 12 June 2015.  He enrolled in this course on 6 May 2013 but the enrolment was cancelled on 20 May 2014 because the applicant notified that he was ceasing studies;

    ·a General English language course scheduled to run between 28 October 2013 and 3 January 2014.  He had enrolled in this course on 6 August 2012, but the enrolment was cancelled on 7 November 2013 because the applicant did not commence studies;

    ·a Bachelor of Business (City) course scheduled to run between 7 February 2014 and 31 December 2015.  He had enrolled in this course on 23 August 2012 but the enrolment was cancelled on 13 March 2014 because the applicant did not commence studies.

    ·an Intensive English language course which ran between 20 October 2014 and 23 January 2015.  The applicant enrolled in this course on 16 October 2014 and “finished” it:

    ·a second Intensive English language course which ran between 26 January and 20 March 2015.  The applicant “finished” this course;

    ·a third Intensive English language course which ran between 18 May and 3 July 2015.  The applicant enrolled in this course on 14 May 2015 but the enrolment was cancelled (presumably as a result of the cancellation of his visa);

    ·a Bachelor of International Business course scheduled to run between 13 July 2015 and 29 June 2017.  The applicant enrolled in this course on 22 May 2015, but the enrolment was cancelled (presumably as a result of the cancellation of his visa);

    ·a Certificate IV in Spoken and Written English course scheduled to run between 2 November 2015 and 29 April 2016.  The applicant enrolled in this course on 6 November 2015 and is currently undertaking the course;

    ·a Diploma of Business course scheduled to commence on 9 May 2016 and run to 7 May 2017; and

    ·an Advanced Diploma course scheduled to run between 8 May 2017 and 6 May 2018.

14. As discussed with the applicant at the hearing, 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.

15. In written submissions to the Tribunal, the applicant’s migration agent provided information which, though in a different form, largely confirms the information set out in paragraphs 10-11 and 13 above.  There were some exceptions relating to dates, including the omission of the last period of absence from Australia mentioned in paragraph 11 above, and the agent did not refer to 8 enrolments as mentioned in the 5^th - 8^th, 10^th, 11^th, 14^th, and 17^th dot points of paragraph 13 above.  The agent also said that the course mentioned in the 13^th dot point of paragraph 13 above was “unfinished.”  This implies that the applicant commenced the course, whereas the PRISMS records indicate that the applicant did not commence studies.

    Is the applicant not a genuine student, or likely not to be a genuine student?

16. As noted above, the applicant made several journeys outside Australia while holding student visas.  His agent outlined the reasons for these journeys in written submissions dated 18 December 2015, and the applicant also referred to these reasons in oral evidence at the hearing. 

17. In particular the applicant claims that the third and fourth journeys mentioned in paragraph 10 above were “to have his back checked” and that the first two journeys mentioned in paragraph 11 above were for medical treatment relating to his back problem.  However, there is some conflicting information regarding when this problem manifested itself and what he did.  In his response to the Department’s notice, he said that “until September in 2012, (he) felt a huge pain which was affecting a lot in (his) daily life and studying.” 

18. As discussed with him at the hearing, this implies he had no difficulty problem with his back until September 2012, and contradicts his agent’s submission that he had made 2 journeys to China before September 2012 to have his back checked.  In response to this apparent contradiction, the applicant said that he had a problem with his back for September but it had not been serious.  The Tribunal why, if the problem was not serious and he had only returned to China to have his back checked, he needed to stay away for periods of more than a month.  He said that although the problem was not serious, his parents wanted him to have a break from his studies.

19. In his response to the notice, the applicant said that he consulted doctors in Australia before he went to China for treatment in late 2012.  However, in his oral evidence at the hearing, he explicitly denied having consulted any doctors in Australia.  He said that he had not done so because he is level of English was not adequate and he did not know any doctors in Australia who he could consult.  In post hearing submissions, the applicant’s agent effectively confirmed the applicant’s oral evidence, saying that the applicant should have started seeing a doctor in Australia but he had not been confident to do so with his Limited English at that time.

20. In his response to the notice, the applicant said that he had received a call from home in March 2014 asking him to go back to China as soon as possible for a few days “due to some family issues” and that, being “a family-orientated and obedient son,” he returned to China urgently.  He said that he had a car accident while he was there and sustained damage in his right leg requiring him to rest for 3 months with 2 months of that in a cast in hospital.  He said that, in June 2014 he went in again for a revisit and was advised to have a further 3 months of rest.  However, his agent’s submission indicates that the journey in question lasted between December 2013 and September 2014.

21. The applicant has presented Chinese medical certificates together with translations.  These documents, on their face support the fact that he was receiving medical treatment in China for a back injury between November 2012 and January 2013 and leg injury for several months from March 2014 which would have ended on his departure from China in late August 2014. 

22. At the hearing, the Tribunal discussed with the applicant country information indicating that it is relatively easy to obtain fraudulent documents in China.  The Tribunal said that it may not give a lot of weight to the documents he submitted.  In this regard, the Tribunal notes that there are entries in his passport which indicate he travelled to Korea for 8 days in May 2014 and for 23 days in June-July 2014.  These were at times when the applicant had said he was receiving treatment in China.  The Tribunal is prepared to give the applicant the benefit of the doubt arising from these entries, given that he may have regarded this travel as a period of “rest.”  It therefore accepts that he was suffering from severe back pain between September 2012 and January 2013, and that he was injured in a motor vehicle accident in China in March 2014, and that he was undergoing treatment and “rest” from then until late August 2014.  It accepts that these medical conditions impacted upon his ability to study.  It also accepts a statement in his response to the notice to the effect that, after he returned to Australia in September 2014, he ‘rested” for a further period until he undertook a further English language course commencing in October 2014.

23. However, given the conflicts in the information before it, the Tribunal does not accept that the applicant was suffering from back pain prior to September 2012.  Further, the Tribunal does not accept that the applicant’s absence from Australia between December 2013 and March 2014 was necessitated by any medical condition.  While it accepts that there may have been some “family issues” which required him to go home for a few days in December 2013, it does not accept that there was any reason for him to remain in China for 3 months.  It considers that an absence of such a period of time, during which he had enrolments in courses of study in Australia, to be an indication that he was not genuinely interested in pursuing studies in Australia.

24. Moreover, the totality of all the periods the applicant has been out of Australia since he first came here in December 2010 (as set out above in paragraphs 10 and 11) is less than 22 months.  Taking all these periods into account (regardless of whether or not they were for medical treatment), he has been physically present in Australia for the purposes of study for more than 3 years and 4 months.  He told the Tribunal that, before he came to Australia, he had studied English at school in China from “year 7 to year 11” (i.e. 5 academic years)

25. During all the time he has been in Australia, he has not completed any substantive course and, although he has “finished” a number of English language courses, he acknowledged at the hearing that he has not achieved a level of English which would permit him to undertake any course in the Vocational Education and Training sector and particularly in the Higher Education sector for which his Subclass 573 visa is applicable. 

26. He acknowledged at the hearing that he had not studied hard enough to gain a suitable level of English.  This suggests to the Tribunal that he is not genuinely in Australia in order to obtain a qualification, but is merely enrolling in courses in order to provide an excuse for your continued presence in the country.

27. In the agent’s submission dated 18 December 2015, he said that the applicant had discontinued the course he was engaged in in June 2011 (the first course mentioned in paragraph 13 above) because he went back to China to attend “an IELTS class there” in the hope that he would not have to study English if he could achieve the requisite number of points to begin a diploma course.  The agent said that the applicant “sat the test immediately in China” but did not achieve sufficiently high marks. 

28. At the hearing, the Tribunal asked the applicant to explain why given that he came to Australia in order to study English, he discontinued his first English language course and went back to China to study English there.  The Tribunal expressed the view that it would have made more sense for him to prepare for, and undertake, any IELTS test in the English-speaking environment of Australia.  The applicant said that he wanted to prepare for an IELTS test, so his parents hired a tutor for him in China.  The Tribunal has considered this but is of the view that such a tutor could have been engaged in Australia.  It considers the fact that the applicant returned to China without completing his first English language course as an indication that he was not genuinely seeking to pursue studies in Australia.

29. The agent’s submission indicates that, when he failed to achieve the requisite level of English in China, he returned to Australia.  However, he did not immediately enrol in a further English language course.  According to the relevant CoE submitted by the applicant’s agent, he did not enrol in a further English language course until 14 November 2011, more than a month after he returned to Australia.  The Tribunal has considered the applicant’s explanation that, he spent that period of time considering which course he should undertake next, but is of the view that a period of more than a month for this purpose was excessive.

30. At the hearing, the applicant confirmed that, at the time his Subclass 573 visa was granted, he was enrolled in 4 courses of study namely those mentioned in the ninth, tenth, thirteenth and fourteenth dot points under paragraph 13 above.  He said that he had not undertaken these courses because of his level of English, though the Tribunal understands his meaning to be that he did not commence the diploma course or the degree course because of his level of English.  He confirmed that he “finished” the English course which commenced on 3 September 2012, but the other 3 enrolments were cancelled because he did not commence studies.  He confirmed that his fees for the diploma course had been refunded in May 2013.

1. The Tribunal asked the applicant to explain why, given that he had an enrolment in the English language course running between 3 September and 5 October 2012 and had “finished” a number of previous English language courses, and was then planning to undertake a Diploma of Business course commencing on 2 October 2012, he had enrolled to undertake yet another English language course scheduled to commence in October 2013.  The applicant said that he had done so because his English level was never good enough to commence the diploma course, and he had medical difficulties.

2. The Tribunal said that his pattern of enrolments at that time could suggest that he was enrolling in courses simply to create the impression that he was studying but that he was only doing this to provide a reason for remaining in Australia.  He said he had intended to undertake the diploma course at his English standard was not good enough.  And he later went back to China for medical treatment.  The Tribunal reiterated the point that, in August 2012, while undertaking an English language course and indicating an intention to undertake a diploma course immediately after the English course, he had enrolled in further English language course to follow the diploma course.  The applicant said that he had initially planned to follow his English language course with the diploma course but he listened to advice from his education agent.

3. In post hearing submissions by his migration agent, the applicant said that, to the best of the applicant’s memory, he only had a conditional enrolment in the second English language course, and had never paid any fees for that course.  The agent said that even if there had been a second English language course, it could be “for gap-filling purpose.”  The agent asked the Tribunal to give the applicant a copy of the relevant CoE.  Given this response, the Tribunal wrote to the applicant in accordance with the provisions of s.359A of the Act enclosing copies of the CoEs relating to the 4 courses mentioned in paragraph 30 above.  These documents showed the dates on which the applicant enrolled in the courses, and the amounts of money paid for tuition and other fees at the time of enrolment. 

4. The Tribunal’s letter also referred to the fact that PRISMS records indicated that he finished the first of the 4 courses and that the enrolments in the other 3 courses were cancelled on 8 November 2012, 17 November 2013 and 13 March 2014 respectively because the applicant did not commence studies in these courses.  The Tribunal’s letter went on to explain the relevance of the information provided and the conclusions the Tribunal might draw from that information. 

5. [In particular, the Tribunal pointed out that it may conclude that, at the time his Subclass 573 visa was granted there was no reason for him to have enrolled in the third course, that is to say the English language course scheduled to commence on 28 October 2013.  It said that the information may cause it to reject the applicant’s assertion that the enrolment in the third course was conditional in nature only and that he had not paid any tuition fees for it said it may conclude that he only enrolled in a course in order to extend the period of time he might be permitted to remain in Australia.  [The letter raised further possible adverse conclusion that might be drawn from the fact that the applicant had not paid any advance fees for the degree course, but the applicant’s agent has answered this point to the Tribunal’s satisfaction.]

6. The applicant’s agent responded to the Tribunal’s letter on 21 January 2016 on the applicant’s behalf.  He said that the package of 4 courses was “designed by (the applicant’s education agent)” because the applicant was not able to make his own plans study as he was young and had only spent a year in Australia.  In fact, by that time, approximately 20 months had elapsed since the applicant first arrived in Australia.  The agent said that there was nothing unusual about a package of courses involving a progression from an English language course to a diploma course and then a bachelor course.  He said that, in the particular case the problem was that the applicant’s then current language course was too short for him to gain a level of English for his next course.  He said that the applicant’s level of English prevented him from commencing the diploma course and, as a consequence meant that he could not commence the degree course.  However, this explanation ignores the fact that at the time the applicant was proposing to commence a diploma course at around the time his then current English language course was due to end.

7. If, the applicant genuinely wished to undertake a diploma course followed by a degree course, but considered his English language’s skills were not sufficient, the logical course progression would have been for him to undertake a further English language course before commencing the diploma course, not to undertake an English language course after completing the diploma course.  In these circumstances, the Tribunal concludes that,  in August 2012, when he enrolled in the English language course scheduled to commence in October 2013, he only did so in order to extend the amount of time he might be allowed to remain in Australia.

8. The applicant has provided the Tribunal with details of the bridging visa granted to him on to June 2015, a few days after his Subclass 573 visa was cancelled.  There is no condition on that visa preventing the applicant from studying.  However, it is apparent from the confirmations of enrolment submitted on his behalf by his agent that, after his enrolment in the courses mentioned in the seventeenth and eighteenth dot point under paragraph 13 above were cancelled immediately after the visa was cancelled, that the applicant did not enrol in a further course of study until 6 November 2015.  His agent attributed the 3 months of this gap to the fact that he was arguing with Top Education, the provider of the Bachelor of International Business course.  However, this does not explain why, having concluded that he could undertake the course at Top, he waited more than 2 months before enrolling in a further package of courses.

9. In his most recent submission, the applicant’s agent has stated that the applicant has paid approximately $59,000 in the way of tuition fees for the various courses in which he has enrolled.  The agent said that this does not suggest that the applicant had no intention of studying in Australia.  However, as discussed with the applicant at the hearing, at least some of those fees have been repaid (for example, the fees for the diploma of business course scheduled to commence on to October 2012).  While the Tribunal accepts that the applicant has expended a considerable amount of money over the 5 years since he first arrived in Australia, it remains unsatisfied that the applicant genuinely intends to pursue studies in the Higher Education sector.

   Conclusion

10. On the basis of information before it, the Tribunal is satisfied that the applicant is not a genuine student, or is likely not to be one. In reaching this conclusion, the Tribunal has considered the matters prescribed in r.2.43(1D) for the purposes of s.116(1A) of the Act as set out in the attachment to this decision. However, there is no evidence to suggest that the applicant’s participation in any course of study has been deferred or temporarily suspended by the provider of that course of study for one of the reasons mentioned in r.2.43(1D), or indeed for any other reason.

11. 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

12. 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’.

13. At the hearing, the Tribunal referred to the delegate’s decision record, as provided to the Tribunal by the applicant and drew the applicant’s attention that that decision record addressed a number of factors which were taken into account when the delegate made the decision to cancel the visa.  The Tribunal said that it understood he would have gone over this decision record with his agent, and asked if he wished to make any comments on any of those factors, or to raise any other reasons why the visa should not be cancelled. 

14. In response to this invitation, the applicant did not specifically address any of the factors mentioned on pages 4 to 6 of the decision record.  He said that he believed he was a genuine student but, because he had been sick and had not studied hard enough he had never achieved the requisite level of English to undertake any other course.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

15. The applicant first came to Australia in December 2010, at which time he was engaged in a package of courses including a Diploma of Business course.  Given those enrolments, the appropriate visa would have been a Subclass 572 visa, rather than the Subclass 575 visa he was granted.  The Tribunal discussed this with him at the hearing but he said that his visa had been organised by an agent and he did not know why he was granted a Subclass 575 visa.  Later, after he enrolled in a degree course, he applied for, and was granted the Subclass 573 visa that was ultimately cancelled.

16. Although the applicant had enrolments in 1 degree course, 1 advanced diploma course and 3 diploma courses that were scheduled to commence prior to the date on which his Subclass 573 visa was cancelled, he did not commence studying any of these visas.  As discussed with him at the hearing, allowing for the periods when he was overseas, he has spent approximately 3 and a half years in Australia but has yet to achieve a level of English which would enable him to undertake studies in any course in the Vocational Education and Training sector or the Higher Education sector.

    The reason for, and extent of, any breach of a visa condition

17. At the hearing, in accordance with the provisions of s.359AA of the Act, the Tribunal discussed with the applicant information indicating that although he held a Subclass 573 visa after 27 September 2012, he had no enrolment in any course of study in the Higher Education sector for a lengthy period of time.  In particular, his enrolment in the Bachelor of Business (City) course scheduled to run between 7 February 2014 and 31 December 2015.  was cancelled on 13 March 2014 because he had not commenced studies.  He did not enrol in a further course of study in the Higher Education sector until 22 May 2015, several days after the Department advised him that they were considering cancelling his visa.

18. This information was relevant because it suggested that he had no genuine intention of studying in the Higher Education Sector and had only re-enrolled in that sector in response to the notice.  It was also relevant because it indicated that, for a period of more than 12 months, he did not continue to be the person who would satisfy the primary criteria for the Subclass 573 visa and was thus in breach of Condition 8516 of his visa. 

19. When invited to comment on this information and reminded of his right to seek more time in which to do so, he did not seek more time.  He asserted that he had enrolled in the second degree course before the Department issued its notice and had already paid his fees for the course.  However, referring to the relevant confirmation of enrolment he had provided to the Tribunal, the Tribunal pointed out that he had not enrolled in that course until 22 May 2015, some 10 days after the notice was issued.  The applicant then said that he had intended to enrol in the course and had approached an education agent to secure that enrolment some time before the notice was issued.  He said he had paid the relevant fees to that agent before the notice was issued.

20. However, when the Tribunal asked the applicant if he had any evidence that he paid the fees for that course before the notice was issued, he did not respond.  He then said that he had approached the agent somewhere in the range of 2 weeks to a month before the notice was issued.  His agent subsequently provided evidence that the applicant had paid his education agent for this purpose on 14 May 2015, that is to say, 2 days after the Department’s notice was issued, and the day before he responded to that notice.  There was therefore a period of more than 13 months during which he was not complying with Condition 8516 and had not sought to rectify the situation.  The Tribunal regards this as a significant breach of that condition. 

    The degree of hardship that may be caused

21. The applicant has not explicitly argued that cancellation of the visa will cause any hardship of any kind.  His agent has referred to the amount of money already spent by way of course fees.  The Tribunal recognises that a large amount of expenditure has already been incurred.  However, there is nothing to suggest that cancellation of the visa will cause any further financial hardship. 

22. The Tribunal recognises that, the cancellation of the visa will mean that the applicant will have to return to his home country without having obtained any substantive qualification.  However, having concluded that the applicant is not a genuine student and is not likely to be a genuine student, the Tribunal does not believe that this situation will amount to hardship for the applicant.

    The circumstances in which the ground for cancellation arose

23. The applicant has asserted that much of his difficulties arise from his medical problems.  As noted above, while the Tribunal is not satisfied that those problems caused him to be absent from Australia for as long as he has been, accepts that his medical conditions have caused disruption to be studies.  Nevertheless, as noted above, he has been in Australia for a more than 3 years in periods when he was able to study.  The Tribunal has noted his comment that he did not study hard enough to be able to obtain a level of English which would permit him to engage in further studies.  The Tribunal does not accept that he is in his current situation because of circumstances beyond his control.

    The applicant’s past and present conduct towards the Department

24. At the hearing, the Tribunal discussed with the applicant information it had obtained from the Department’s records suggesting that, since the visa was cancelled, he may have remained in Australia without any visa.  The applicant said he had a Bridging visa, and his agent later provided evidence that that visa had been granted on 2 June 2015 [which was the day after the Tribunal had consulted the relevant records].  The Tribunal is not aware of any adverse conduct towards the Department on the applicant’s part.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

25. The applicant is currently in Australia with a bridging visa.  Cancellation of the visa may result in the applicant being unlawful in the event that a further Bridging visa is not granted and he remained in Australia.  In such hypothetical circumstances, he may become subject to detention.  However, there is no evidence before the Tribunal to suggest that, in such circumstances, he would remain indefinitely in detention. 

26. The applicant has not claimed that, in the event of cancellation, there are any provisions in the Act which would prevent him from making a valid visa application without the Minister’s intervention and in the circumstances of the present case, the Tribunal is not aware of any such provisions. 

    Whether there would be consequential cancellations under s.140

27. There is nothing to suggest that any other person’s visa would be cancelled under s.140 if the applicant’s visa were to be cancelled.

    Whether any international obligations would be breached as a result of the cancellation

28. There is nothing to suggest that any of Australia’s international obligations would be breached as a result of the visa being cancelled.

    Any other relevant matters including matters raised by the visa holder

29. The Tribunal is not aware of any relevant matters other than those discussed above.

    Conclusion

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

    DECISION

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

    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.