1508526 (Migration)

[2015] AATA 3826

1508526 (Migration) [2015] AATA 3826 (30 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhuang Sun

CASE NUMBER:  1508526

DIBP REFERENCE(S):  BCC2015/804437

SENIOR MEMBER:  Antoinette Younes

DATE:30 November 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 30 November 2015 at 11:45am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 June 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, 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 27 November 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. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(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?

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

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

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

10. In support of the application for review, the applicant provided a copy of the delegate’s decision record. In the decision record, it is noted that:

    a.On 21 May 2013, the applicant was granted a subclass TU-573 student visa on the basis of his intention to study a Master of Management (Marketing) at Central Queensland University (CQU). He was due to commence the course on 28 October 2013. Prior to commencing the course, the applicant was to undertake the course of English for Academic Purposes commencing on 15 July 2013.

    b.The Provider Registration and International Students Management System (PRISMS) indicates that, in relation to the course of English for Academic Purposes, the applicant never commenced and that the CoE was cancelled on 23^rd of July 2013 on the basis of non-commencement. Similarly, the applicant’s CoE was cancelled in relation to the Master of Management (Marketing) course because he “failed to enrol to commence studies”.

11. On 30 April 2015, the Department sent to the applicant a notice of intention to consider cancellation to which the applicant responded on 6 May 2015. In that response, the applicant stated that:

    a.He arrived in Australia on 12 June 2013 as a holder of a subclass 573 visa. He paid the Chinese migration agent 170,000 RMB that included the 10 week language course fees, tuition fees and health insurance. He was told that a particular teacher (NIU) was in charge of everything.

    b.Within half a month after his arrival in Australia, he found NIU who was initially nice to him so the applicant trusted him completely. A few days later NIU asked the applicant for his passport, CoE and his signature but he could not get those documents back until the course in which he was enrolled commenced.

    c.On his first day of school, NIU sent to the applicant a female teacher who instructed him to withdraw from the course. NIU explained to the applicant that he would get him a transfer to another university, where he could achieve the same diploma and spend less money. It took half a year to get him transferred. He asked NIU on many occasions but he always blamed the University which refused to refund his tuition fees.

    d.The agent in China told him that the he should be refunded half of his tuition fees. The applicant discovered that his fees had already been collected by his agent on his behalf. He felt cheated but he could not find anyone to help him. NIU comforted the applicant and said he would manage all for him.

    e.In early 2014, he called NIU and was told that he could study in February. At that time, he did not have his new CoE and NIU told him that he need not pay tuition fees at that stage. After studying for a month, a friend of his suggested to consult another migration agent. He showed that agent the initial CoE and was told that he had only paid $900 for tuition fees and that it was not possible to get a refund. The applicant realised that he was “swindled”.  He called NIU but his attitude had totally changed. He pushed the applicant to pay for the language course and threatened to report him to the Department if he did not pay the University on time. The applicant called his mother who told him that the Chinese agent was arrested for fraud and irresponsibility.

    f.He has lost contact with NIU who never answers his telephone and has changed his office and address. He has sought advice from many agents all of whom told the applicant that he could no longer continue studying in Australia. He has always had a strong desire to pursue higher education in Australia but what happened to him is “completely unforeseeable and compelling”. He was a victim of the unscrupulous agent. Despite all of those difficulties and frustrations, he is ready for a new start.

12. 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 10 of this decision. Essentially, the applicant reiterated the explanations that he had provided to the Department, namely that he had an agent in China who had a partner in Australia called NIU and that they gave him advice which he followed.

13. The applicant stated that NIU told him that he could transfer and he was waiting for things to be sorted out.  He did not attend classes. He said he also discovered through another agent that the fees that he had paid did not include tuition fees for one year. He discovered that only $900 was paid. The Tribunal indicated that it would further consider his explanations but noted that he had a personal responsibility to ensure compliance with the visa which he was granted. The applicant stated that he really wants to study in Australia.

14. The Tribunal asked the applicant if he was working during that time and the applicant stated he was not. The Tribunal asked him what he was doing with his time if he was not working or going to classes to which the applicant responded “I was having fun at home….. Playing games….”

15. The Tribunal has carefully considered the evidence cumulatively. Whilst the Tribunal acknowledges that it is possible that the applicant was dealing with agents who handled his case in an inappropriate manner, given the applicant’s response that he was having fun at home playing games it during that period, the Tribunal does not accept that the applicant’s lack of commencement of courses is due the claimed reasons. It is difficult to accept that the applicant for many months was simply waiting for his agents to sort it all out whilst he was playing games at home.  Moreover, it is the applicant’s responsibility to comply with the conditions of the visa that he was granted. The Tribunal got an impression that the applicant is not serious about his studies.

16. On the basis of the available information, the Tribunal is satisfied that the applicant is not, or is likely not to be a genuine student. 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

17. 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

18. The applicant was granted the visa to study in Australia. The evidence before the Tribunal indicates that the applicant is not a genuine student.

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

19. The Tribunal has carefully considered the applicant’s explanations but the Tribunal finds them unpersuasive and unconvincing. On balance, the Tribunal is not satisfied that those factors led to the applicant not being a genuine student.

    Degree of hardship that may be caused

20. 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 or complete further studies. If the visa is cancelled and unless the applicant has made other arrangements, he could become an unlawful noncitizen and could be liable to detention.  The applicant will have limited options to apply for further visas in Australia.

21. Overall, looking at the circumstances cumulatively, the Tribunal is not satisfied that there is a degree of hardship that would outweigh the reasons to cancel the visa.

    Circumstances in which ground of cancellation arose

22. As outlined above, the applicant did not commence the courses in which he was enrolled. His personal reasons as accepted by the Tribunal, do not explain the non-commencement.

    Past and present conduct of the visa holder towards the department

23. The applicant’s conduct towards the Department is noncontroversial; he responded to the notice.

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

24. 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

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

    Whether there would be consequential cancellations under s.140

26. The applicant’s spouse was granted a visa on the basis of being a secondary applicant. Her visa has been cancelled by operation of law pursuant to s.140 of the Act. Cancellation of the applicant’s visa therefore has a direct negative impact on her.  However, the Tribunal is satisfied that any such impact does not outweigh the reasons to cancel the applicant’s visa.

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

27. There is no evidence before the Tribunal and the applicant is not claiming that there are any international obligations that would be breached as a result of the cancellation.

    The impact on any victims of family violence

28. 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

29. The Tribunal acknowledges that the applicant travelled to Australia to study but the cumulative evidence before the Tribunal indicates that he is not a genuine student. The applicant was granted a visa to study in Australia and it is expected that he would do so.

30. In consideration of the evidence as a whole, the Tribunal has concluded that the applicant’s intention has not been consistent with the reasons he was granted the visa.

31. In essence and for those reasons, the Tribunal is satisfied that there are no factors that should lead to the favourable exercise of discretion in this matter.

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

    DECISION

33. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education 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.