1507527 (Migration)

[2016] AATA 3193

1507527 (Migration) [2016] AATA 3193 (5 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yu-Chiang Huang

CASE NUMBER:  1507527

DIBP REFERENCE(S):  BCC2015/539637

MEMBER:David McCulloch

DATE:5 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 570 Independent ELICOS Sector visa.

Statement made on 05 February 2016 at 10:51am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 May 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 570 Independent ELICOS Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Taiwan born on 13 March 1991. The applicant was granted a Student (Temporary) (class TU) ELICOS Sector (subclass 570) visa on 10 March 2014. The applicant most recently entered Australia on 22 April 2014.

3. On 18 February 2015, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s. 116 of the Act. The applicant provided no response to the NOICC. On 29 May 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.

4. 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?

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

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

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

   Relevant law

8. 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).

9. 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.

10. 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]).

11. 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.

12. 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

13. There is nothing before the Tribunal to indicate that the applicant’s participation in the course had been deferred or temporarily suspended by the provider of the course.

14. When making the application for review, the applicant provided to the Tribunal a copy of the primary decision record. It indicates the following.

15. The visa the applicant was granted on 10 March 2014 was for the purpose of undertaking the course Intensive English (Beginner to Advanced) (2 to 52 weeks) at Castle College. Since the applicant commenced this course on 12 May 2014 he had attended 32 hours of scheduled classes.  As at 22 May 2014, the scheduled class hours for this course were 720 hours. This puts the average course attendance at 4 percent in the last nine months in which the applicant has attended seven classes.

16. The decision records that on 18 February 2015 the applicant was contacted (by the Department) and his study was discussed. The applicant confirmed that he had only attended seven classes and he thought that the course ended in September 2014. He confirmed that he had not been to the education provider since September 2014.

17. The delegate concluded that based on the information before him it appeared that the applicant’s primary purpose for holding a student visa was not for the purpose of study. Therefore it appeared that the applicant was not, or was not likely to be, a genuine student.

18. The applicant provided no response to the NOICC in advance of the decision to cancel.

19. In the Tribunal hearing, the applicant indicated that it was correct that he attended only 32 hours of 720 hours of the course. However, the applicant then indicated that after he was contacted by the education provider he did attend again but could not indicate for how long. The applicant then indicated that after he received the NOICC he attended for part of the first semester of 2015.

20. The Tribunal put to the applicant pursuant to the procedural requirements of s.359AA of the Act information being his attendance record on the Departmental file which indicates no attendance for the applicant in 2016. The Tribunal indicated that this information was relevant because it was inconsistent with his claim in the hearing that he did attend classes in 2015, which is undermining of the applicant’s credibility. It indicated that it was also relevant as it indicated that the applicant was not acting as a student in the first part of 2015. The applicant, in response, said that he would seek to obtain information to prove his attendance in the first part of 2015.  The Tribunal also asked the applicant to provide transcripts which would indicate subjects passed.

21. No response was provided within the 10 day timeframe provided by the Tribunal.

22. The Tribunal notes that in fact the attendance record indicates that the applicant did attend on one day in 2015, namely on 19 January 2015.

23. The applicant in the hearing acknowledged that his attendance was poor. At first, the applicant said that this was because he was discriminated against at the school. When the Tribunal explored this, the applicant said that he was not discriminated against but he felt uncomfortable in classes.

24. The applicant said that the main reason he did not attend classes was because he was living with his sister and helping her look after her child.

25. When the Tribunal asked the applicant whether he ever raised with the education provider the various difficulties he was facing the said that he did not think of this.

26. When the Tribunal asked the applicant whether he had been studying recently, the applicant said that he finished studying about three months ago. When this was explored, it appeared that the applicant was referring to his studies at Crown Castle. The Tribunal noted that this course ended in April 2015. The applicant said that he was unclear as to dates. The Tribunal pointed out to the applicant that there was a significant difference in him indicating that he had stopped studying three months ago as compared to the (nine) months that had passed since April 2015.

27. When the Tribunal asked the applicant why he was not currently studying, he said that he was waiting for the finalisation of his review. The Tribunal put to the applicant pursuant to the procedural requirements of s.359AA of the Act the fact that information on the Tribunal file obtained from government systems indicates that there is no limitation on the applicant’s ability to study in term of the conditions on his Bridging visa. It was noted that this information was relevant because, if the applicant were a genuine student, it might be thought that he would be studying in Australia notwithstanding that this Student visa had been cancelled.

28. The applicant in response said that he did not know that he was able to study. The applicant confirmed that he had a migration agent.

29. The applicant has acknowledged that his attendance was poor. At the beginning of the hearing, he indicated that it was accurate that he had only attended 32 hours out of 720 hours. However, during the course of the hearing he appeared to contradict this by saying that he attended again after he was counselled (which appears to have happened on 13 November 2014).  He then said that he attended after he received the NOICC.

30. Whilst the attendance record indicates that the applicant did attend on one day in January 2015, which the Tribunal accepts, there is no record of the applicant attending after the NOICC was sent on 18 February 2015.

31. The Tribunal considers overall there was a vagueness and equivocation with the applicant’s evidence concerning his attendance, and when he finished studying.

32. The Tribunal considers that the applicant in the hearing obfuscated as to when he was last studying, initially saying it was three months ago but then suggesting that it was when the Crown Castle course finished in April 2015. The Tribunal does not think there can be understandable confusion as between these timeframes.  The Tribunal does not consider that the applicant was a reliable witness with a tendency to vagueness and obsfuscation.

33. The Tribunal is satisfied that the applicant attended only 32 of 720 hours of his course at Crown Castle. This indicates to the Tribunal that the applicant was not a genuine student for the duration of this course. Further, the Tribunal is not satisfied that the applicant has taken any steps to enrol role or study since the ending of this course in April 2015, both before and after the cancellation of the Student visa. As noted, there is no restriction on the applicant’s ability to study on his Bridging visa and the Tribunal considers that if the applicant has an intention to be a genuine student that he would have continued to study notwithstanding the cancellation of his Student visa.  The Tribunal does not accept the applicant’s explanation that he did not know he was able to study as an excuse for failing to study. The applicant had a migration agent who would have been in a position to advise him of his ability to study if he had a desire to be a genuine student.

34. The applicant has claimed that his studies have been minimal due to feeling uncomfortable with the course and having to look after his sister’s child. The Tribunal notes that the applicant did not raise any of these issues with his education provider with a view to seeking assistance or a possible deferral of his course if he needed to deal with family issues. These factors will be considered in the exercise of the Tribunal’s discretion.

35. In determining whether the applicant is not, or is not likely to be, a genuine student, the Tribunal is not satisfied that these factors weigh in favour of the applicant being considered a genuine student.

36. The failure by the applicant to act as a genuine student has been egregious. He has fulfilled a very small percentage of his attendance requirements for his Crown Castle course.  There is no indication of any further study since the completion of the Crown Castle course in April 2015. The Tribunal is not satisfied, considering the whole period of the applicant’s time in Australia since his arrival in 2014, that he has been a genuine student or that he is currently or is likely to be a genuine student.

37. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(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

38. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; the extent of compliance with visa conditions; 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 - whether there are extenuating circumstances beyond the visa holder’s control; 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 there are mandatory legal consequences to the decision (including: whether indefinite detention is a possible consequence in light of any non-refoulment obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non refoulement obligations; and any other relevant matters.

39. The applicant confirmed in the hearing that the purpose of him travelling to Australia was to study. The Tribunal is of the view that the applicant has not fulfilled this purpose or the requirement of the Student visa, until it was cancelled, to be a genuine student.

40. The Tribunal has no evidence that the applicant has not complied with visa conditions.

41. In terms of hardship to the applicant or his family if the visa remains cancelled, the applicant in the hearing indicated that he has got used to Australia and is no longer scared of the environment. He indicated that if the visa remains cancelled he will look at other ways to study in Australia and discuss the issue with this family.

42. The Tribunal accepts that there will be hardship to the applicant if the visa remains cancelled in terms of the applicant needing to leave the country and being unable to continue with his studies in Australia. The Tribunal does not consider the latter to be a significant hardship given the limited effort the applicant has put into studying in Australia and that he has not acted as a genuine student. The Tribunal accepts that there will be hardship in terms of limitations on the ability to apply for certain visas onshore.

43. The applicant in the hearing indicated that there is no hardship that would be faced by family members if the visa remains cancelled.

44. In terms of extenuating circumstances, the applicant indicated that the key factor in his difficulties being a student was the fact that he needed to assist in caring for his sister’s child. The applicant also indicated that he felt uncomfortable attending classes. The Tribunal is prepared to accept these two issues created some difficulty. However, the Tribunal does not consider that these factors, in the overall circumstances of the applicant’s breach, are such that the Tribunal should exercise the discretion in the applicant’s favour. Whilst it is understandable that the applicant may have felt a degree of discomfort studying in a new environment in a new country, there is no evidence that the applicant persevered to overcome these difficulties or that he sought support from the education provider. In relation to having to care for his sister’s child, the primary purpose of the applicant being in Australia was to study and the Tribunal is not satisfied that it should exercise a discretion in the applicant’s favour based on him being unable to undertake almost any study because of other family commitments. Further, there is no indication of the applicant sought to discuss these other commitments and the difficulties these were creating with his education provider.

45. In terms of mandatory detention, if the visa remains cancelled the applicant could be detained for being an unlawful citizen. However, the Tribunal considers that the applicant would be in a position to apply for a Bridging visa whilst making arrangements to leave the country which would make his status lawful.

46. No evidence has been provided which suggests that the interests of children would be affected by the decision. No evidence has been provided which would suggest that the applicant fears serious or significant harm on return to his home country that would invoke Australia’s non-refoulement obligations.  No evidence has been provided which make relevant any other discretionary grounds in the Departmental guidelines. There is no evidence before the Tribunal which raises other factors relevant to the exercise of the Tribunal’s discretion.

47. Considering the circumstances as a whole, the Tribunal considers that the failure of the applicant to be a genuine student has been egregious considering that he has undertaken almost no study in his almost two years in Australia. Whilst the Tribunal accepts that there will be some hardship to the applicant if the student visa remains cancelled it is not satisfied that such hardship warrants exercising the discretion in the applicant’s favour.  The Tribunal accepts that there was some difficulty for the applicant in feeling comfortable with this course and that he had commitments looking after his sister’s child but, again, the Tribunal is not satisfied that these factors warrant exercising the discretion in the applicant’s favour. In considering all relevant factors, the Tribunal is of the clear opinion that the preferable course is for the visa to remain cancelled.

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

    DECISION

49. The Tribunal affirms the decision to cancel the applicant’s Subclass 570 Independent ELICOS Sector visa.

    David McCulloch
    Member