1508378 (Migration)

[2015] AATA 3825

1508378 (Migration) [2015] AATA 3825 (2 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yanbin Wang

CASE NUMBER:  1508378

DIBP REFERENCE(S):  BCC2015/858645

SENIOR MEMBER:  Antoinette Younes

DATE:2 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 571 Schools Sector visa.

Statement made on 02 December 2015 at 11:47am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 June 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 571 Schools 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, or is likely not to be 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 1 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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 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)(i). 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.

9. In the decision record provided by the applicant in support of the application for review, it is noted that:

   a.Information available in the Provider Registration and International Student Management Systems (PRISMS) indicates that the applicant has not undertaken any studies since 6 October 2014 following being granted a deferral from his education provider, the Specialty Language Centre, Oxford College of English (Oxford College).

   b.Oxford College had approved the period of deferral from 7 October 2014 until 15 March 2015. The deferral end date was later amended to 20 February 2015. Oxford College advised the department that the applicant never returned to his studies as planned.

   c.The applicant’s last date of enrolment was 9 March 2013 and the applicant’s CoE was cancelled for non-commencement of studies.

10. On 20 May 2015, the Department sent to the applicant a notice of intention to consider cancellation.  The applicant did not respond to the notice.

11. In the course of the hearing, the Tribunal discussed with the applicant the information contained in the delegate’s decision record that led to the cancellation of the visa, as described at paragraph 9 of this decision. The applicant confirmed that the information is correct.

12. The Tribunal asked the applicant why he did not attend classes and the applicant stated he felt uncomfortable physically and did not attend school as a result. The Tribunal asked him what the physical discomfort was and the applicant stated that he had family problems, namely that his parents were going through a divorce. He explained to the Tribunal that he came to Australia in March 2014 with his father and that his father is the holder of a Guardian visa granted in order for the father to look after the applicant who is 17 years of age.

13. The Tribunal asked the applicant what he was doing with his time if he was not attending classes. The applicant stated that he stayed at home and sometimes worked in order to earn pocket money. He said he worked in a restaurant as a waiter for about 2 to 3 hours a day, approximately 2 to 3 days a week but he was not sure. The Tribunal indicated to the applicant that given his earlier evidence that he was unable to go to classes because of the impact of his parents’ divorce, it seems odd that he was able to work. He said he needed to work to earn pocket money.

14. The Tribunal has carefully considered the applicant’s explanations and finds them unpersuasive and unconvincing. On his own evidence, he worked when at the same time he claimed that his parents’ divorce caused him discomfort to the degree of him being unable to attend courses. On the basis of the available information and in consideration of the evidence as a whole, whilst it is possible that the applicant was upset about his parents’ divorce, the Tribunal does not accept that this explains or accounts for the applicant’s conduct in relation to his studies. He was granted a visa to study in Australia and the evidence before the Tribunal indicates that he did not study, contrary to the grant. For those reasons and in consideration of the evidence as a whole, the Tribunal finds that the applicant is not, or is likely not to be a genuine student.

15. 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

16. 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’.

    The purpose of the visa holder’s travel and stay in Australia

17. The applicant was granted the visa to study in Australia. The evidence before the Tribunal indicates that the applicant not studying is incommensurate with that purpose.

    Reason and extent of any breach of a visa condition (if relevant)

18. As outlined above, whilst acknowledging his lack of studying at a course, the applicant provided explanations relating to parents’ divorce. Whilst the Tribunal accepts that it is natural that the parents’ divorce might have unsettled and upset the applicant, on balance, the Tribunal is not satisfied that it caused the applicant not to study in a course. The applicant was granted the visa in order to study in Australia.

    Degree of hardship that may be caused

19. The Tribunal appreciates that the cancellation of the visa may cause the applicant a certain degree of hardship such as not being able to pursue further studies in Australia.  However, on the basis of the available information, the Tribunal is not satisfied that the applicant would pursue any further studies.  Unless the applicant is granted another visa, he could become an unlawful noncitizen and could be detained and/or removed from Australia. He will have limited options to apply for further visas in Australia and may be required to return to China. Overall, looking at the circumstances cumulatively, the Tribunal is not satisfied that there is a degree of hardship that should outweigh the reasons to cancel the visa.

    Circumstances in which ground of cancellation arose

20. The applicant did not study and his confirmation of enrolment was cancelled for non-commencement of studies.  His personal reasons as accepted by the Tribunal are not persuasive.

    Past and present conduct of the visa holder towards the department

21. The applicant did not respond to the notice of intention to consider cancellation.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

22. This is not a breach of the holder of a subclass 457 visa.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

23. The applicant is not in detention and he would be expected to comply with the conditions of any subsequent visa granted, including a bridging visa.

    Whether there would be consequential cancellations under s.140

24. The applicant gave evidence that his father was granted a Guardian visa to look after the applicant in Australia. The Guardian visa is not automatically cancelled as a consequence of the cancellation of the applicant’s visa, by operation of s.140(1) of the Act. However, it could be cancelled under other provisions of the Act.

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

25. The applicant is not claiming that there are any international obligations that could be breached as a result of the cancellation.  As the applicant is 17 years old (almost 18), the Tribunal has considered whether any obligations could be breached under the Convention on the Rights of Child (CROC).  On the basis of the available information, the Tribunal is satisfied that in the applicant’s circumstances, there would not be breach of any international obligations including those under the CROC, in case of the visa cancellation.

    The impact on any victims of family violence

26. There is no evidence before the Tribunal that there is any victim of domestic violence or that there would be any such impact.

    Any other relevant matters raised by the visa holder

27. The Tribunal considers the applicant’s lack of studying in Australia to be serious and significant. His claimed personal circumstances as accepted by the Tribunal do not warrant the favourable exercise of discretion. The applicant was granted a visa to study in Australia and it is expected that he would do so.

28. In consideration of the evidence as a whole, and for the stated reasons, the Tribunal is satisfied that there are no factors that lead to the favourable exercise of discretion in this matter.

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

    DECISION

30. The Tribunal affirms the decision to cancel the applicant’s Subclass 571 Schools Sector visa.

    Antoinette Younes
    Senior 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.