1509043 (Migration)

[2016] AATA 3717

1509043 (Migration) [2016] AATA 3717 (1 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ziyan Tang

CASE NUMBER:  1509043

DIBP REFERENCE(S):  BCC2015/1450127

MEMBER:David McCulloch

DATE:1 April 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 01 April 2016 at 2:19pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 July 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 on 3 November 1993.  The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 10 December 2012.

3. On 4 June 2015, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s. 116 of the Act. The applicant provided her response to the NOICC on 23 June 2015. On 3 July 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 8 February 2016 to give evidence and present arguments. The applicant communicated with the assistance of an interpreter in the Mandarin language.

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 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, is engaging, 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 to indicate any of the factors in r.2.43 are relevant.

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

14. Based on evidence in the Provider Registration and International Student Management System (PRISMS) although it appears that the applicant held enrolment with the University of Sydney in the course Bachelor of Political, Economic and Social Sciences until 1 April 2015, the applicant had not actually studied in the registered course since 22 November 2014. It appears that the applicant has ceased to be enrolled in a registered course since 1 April 2015.

15. The delegate determined that, given those facts, it appears that the applicant’s primary intention is not to undertake study and as such it appears that the applicant is not a genuine student.

16. The applicant provided a response to the NOICC which indicated as follows. She indicated that she has been studying at the University of Sydney since July 2012.She indicated that she was in China on holiday from 18 December 2014 to 18 March 2015. She did not complete the enrolment for the first semester in 2015. This was because the applicant’s grandfather died on 8 March 2015 and the applicant had to complete his funeral. When the applicant came back to Australia on 18 March 2015, she tried to enrol in her degree but was told that it was too late to be enrolled and she would have to do defer ‘one or two semester’. The applicant was applying to defer the first semester of 2015 but did not know that it was not processed successfully. As a result, the applicant did not study for three months.

17. When the applicant received a letter from the Department, she realised problems in communication with the University. She went back to the University to explain and apply for a new Confirmation of Enrolment and to be enrolled for the next semester. However, this takes one to three months. To make sure that the applicant can study in Australia even if the University of Sydney cancels her place, the applicant applied to many other universities as a backup.

18. The applicant says she has been in Australia since 28 April 2010 and has done her best to study hard. She finished high school year 11 in Uniworld College and studied a foundation programme at Taylors College from 2011 to 2012. The applicant then was accepted into the University of Sydney to study Bachelor of Political Economy and Social Science. She has the confidence to finish her Bachelors degree in Australia and would like to apply for a  Masters course in the future. The applicant provided a translation of a document which refers to the applicant and her grandfather’s death on 8 March 2015 and indicates that the applicant was helping with the funeral.

19. The applicant indicated that she would provide new Confirmations of Enrolments as soon as they come out.

20. The applicant provided a number of documents to the Tribunal:

    ·Certificate from University of Sydney indicating that the applicant had completed the Coursework for Extra Semester February 2012 of the University of Sydney Foundation Program from 1 February 2012 to 30 May 2012 indicating that the applicant’s attendance was 64 percent and unsatisfactory;

    ·Certification that applicant had completed all examinations and coursework for the USFP January Standard Economics/Commerce from 1 February 2011 to 12 December 2011 and the Repeat Semester Foundation Program from 31 January 2012 to 20 June 2012 and listing his results with an average grade of 7.1;

    ·Confirmation of Enrolment for Bachelor of Political, Economic and Social Sciences starting 30 July 2012 ending 15 July 2015;

    ·Offer Letter from Wentworth Institute, Bachelor of Business starting 14 March 2016; and

    ·Commonwealth Bank statements of the applicant showing payment of pre-payment of tuition fees for the first six months of the above course.

21. In determining whether the applicant is a genuine student, the Tribunal accepts that she has acted as a genuine student from her arrival in Australia in 2010 up until the end of 2014.

22. The issue for the Tribunal is the applicant’s lack of study or enrolment during the course of 2015 and in early 2016.

23. The Tribunal in the hearing explored with the applicant why she was not able to re-enrol online in the Bachelors course from China over the holiday period 2014/2015.  The applicant indicated that this was because of Internet difficulties. The Tribunal indicated that it had difficulty accepting that the applicant would not be able to find suitable Internet facilities and access in China. The applicant indicated that some websites are blocked. While the Tribunal accepts that the Chinese government does block access to certain websites, it is not satisfied there is evidence before it that establishes that that the website of the University of Sydney, a respected educational institution, would be blocked by the Chinese government.

24. The Tribunal explored with the applicant in the hearing her knowledge of the deadline for enrolment. The applicant said that the enrolment deadline was two weeks after the course commencement on 1 March 2015. The Tribunal noted to the applicant that she had returned to Australia after this deadline. It explored whether she had contacted the University through other means to facilitate enrolment. The applicant then indicated that she was not aware of the enrolment deadline at the time. The Tribunal has difficulty accepting that the applicant would not have informed herself of enrolment deadlines particularly if she was not going to be in Australia at the point that the course commenced.

25. Whilst the Tribunal is prepared to accept that the applicant’s grandfather died whilst she was in China over the 2014/15 summer break, and that this would have been upsetting for the applicant, and that she had responsibilities in relation to the funeral, the Tribunal is not satisfied that this explains the applicant’s failure to re-enrol.  Re-enrolment is a simple administrative task which can be completed online and the Tribunal is not satisfied that there would have been significant limitations on the applicant to undertake re-enrolment online from China. The Tribunal is not satisfied with the credibility of the applicant’s claim that she was not aware of the re-enrolment deadline, particularly if she knew she was not going to return to Australia in time for the course to start. If the applicant had a genuine intention to continue her studies the Tribunal considers that she would have made enquiries about the enrolment deadline and met it through the simple process of online re-enrolment.

26. The Tribunal put to the applicant, pursuant to the procedural requirements of s.359AA of the Act, information from the Provider Registration and International Student Registration System (PRISMS) which indicates that the applicant’s enrolment in the Bachelors course at the University of Sydney was cancelled on 1 April 2015 due to the applicant notifying cessation of her studies. This was relevant because it was inconsistent with the applicant’s claims that she was seeking deferment of her studies.  The applicant in response said that it was impossible that she would have notified cessation of her studies given that she had been studying in Australia for six years. She said that there must have been a miscommunication with the University.

27. The applicant in the hearing thought that she had a deferment but she had no correspondence from the University confirming this.

28. The Tribunal explored with the applicant in the hearing contact with the University after receiving the NOICC, which indicated that the course had been cancelled, and seeking with the University to rectify this (given that the applicant indicated that she did not in fact withdraw from the course). The applicant initially said that her focus was enrolling in other courses. Later, the applicant said that she did make enquiries of the University but was told that it was not possible to re-enrol. The applicant said that that she was told that she could not re-enrol in the Bachelors course she had been undertaking and had to start a completely new course. The Tribunal expressed surprise that this would be the case.

29. The Tribunal indicated to the applicant difficulties with her claims about the circumstances of failing to study or be enrolled at the University of Sydney. The applicant’s indication that she thought she had deferment without any official acknowledgement by the University is not plausible. The PRISMS system indicates that the applicant withdrew from the course of her own volition in April 2015 which is inconsistent with her own claims. The Tribunal finds it unlikely that the University would have prevented the applicant from re-enrolling in her previous Bachelors course effectively wasting years of study.

30. In addition, the applicant’s response to the Department indicating that she was pursuing enrolment options with the University of Sydney was contrary to her claims in the hearing that she decided to pursue other study options. In response to this inconsistency, the applicant indicated that it was at a later point that she decided to pursue other study options.

31. To seek to address at least some of these concerns, the Tribunal gave the applicant the option of consulting with the University of Sydney and having them providing a letter to the Tribunal providing information about the deferment process undertaken by the applicant, the basis on which the applicant’s enrolment was cancelled, and confirming that the University gave her advice that she was not able to re-enrol in her Bachelors course in mid-2015 and any other information relevant to the applicant’s enrolment study.

32. The Tribunal gave the applicant two weeks to provide this information. The applicant asked for an extension to provide the information at the end of this two week period.  The Tribunal gave the applicant an additional week. The applicant telephoned Tribunal staff subsequently, indicating she had not received a response to the request for an extension. It was pointed out by Tribunal staff that an email had been sent to her nominated email address advising of this. The applicant asked a further extension over the telephone. She was told that she would need to put a request for an extension in writing. She did not do so.

33. Although there was no formal request, the Tribunal contacted the applicant indicating that she would be given to further weeks to provide the information. No response was provided by the applicant by the deadline, or prior to the finalisation of this decision. Seven weeks in total were provided to the applicant to provide this information. The Tribunal provided latitude in this respect because the applicant had indicated that the university were busy due to enrolment issues.

34. In the hearing, the Tribunal noted that the applicant had a Letter of Offer for a course commencing March 2016.  The Tribunal indicated that, even if was to accept all her claims as to the failure to be studying or enrolled at the University of Sydney, the applicant had failed to be enrolled or study for a period for many months. That would not suggest that the applicant was acting as a genuine student. The applicant indicated that she was a genuine student, but wanted to resolve the visa situation and did not want to commence a course that she could not complete.  While the Tribunal accepts the rationale of the applicant not wanting to commence a course she could not complete the following the cancellation of the Student visa in July 2015, it does not overcome the fact that the applicant failed to study or be enrolled during the first half of 2015 when she had an obligation to be studying and enrolled pursuant to her Student visa. This is significantly adverse to the applicant’s claim that she is or intends to be a genuine student.

35. In the absence of the applicant providing any evidence from the University of Sydney to support her claims, the Tribunal is not satisfied that the applicant failing to either re-enrol in the Bachelor of Political Economy and Social Science or to be enrolled in another registered course was for the reasons claimed or due to circumstances beyond her control. Even if they were, the applicant should have made other study arrangements.  In addition, the Tribunal is not satisfied with the applicant’s explanation for her failure to re-enrol over the summer of 2014/2015.  The Tribunal is of the view that the applicant’s failure to study or enrol during the course of 2015 demonstrates that she is not nor is likely to be a genuine student. The Tribunal is not satisfied that the applicant providing an offer letter in relation to a course starting in March 2016 demonstrates that the applicant is or is likely to be a genuine student in the context of her study and enrolment history in 2015.  The Tribunal has taken into account the applicant’s study from 2000 to 2014 but it does not overcome the lack of study or enrolment in 2015 and early 2016 in persuading the Tribunal that the applicant is or is likely to be a genuine student. 

36. The Tribunal is satisfied that the applicant is not a genuine student and is likely not to be a genuine student in terms of her conduct in 2015 and beyond. The

37. 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

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; compelling reasons to remain 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 (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.

1. The applicant’s purpose in travelling to and staying in Australia since 2010 has been to study. The applicant has fulfilled that purpose up until the end of 2014. The applicant has not been fulfilling that purpose from 2015 onwards.  In terms of the obligation to be enrolled, the applicant did not fulfil that obligation from 1 April 2015 until the Student visa was cancelled on 3 July 2015.

2. In terms of any compelling need to stay in Australia, the applicant in the hearing indicated that she wishes to continue her studies and that her parents will be disappointed if she does not.

3. The applicant has not complied with visa condition 8202 to be enrolled in a registered course since 1 April 2015 until the visa was cancelled. The Tribunal has no evidence that the applicant has failed to abide by any other visa conditions.

4. In terms of hardship that the applicant will face if the visa remains cancelled, the Tribunal refers to evidence that the applicant wishes to continue her studies in Australia and that her parents have expectations of her in this respect. The applicant also indicated that she very much likes Australia and has been here since her teenage years. The Tribunal acknowledges that if the visa remains cancelled that would provide limitations on the provision of certain other visas onshore.

5. In terms of the circumstances in which the ground for cancellation arose and the reason for the breach, these issues have been canvassed in the discussion as to whether the ground for cancellation exists.  As indicated the Tribunal has not accepted that there were administrative problems beyond the applicant’s control with the University of Sydney for not being enrolled, or that the death of her grandfather justifies the applicant not re-enrolling. Even if there were administrative problems at the University of Sydney, the applicant should have made other study arrangements at an early opportunity.

6. The Tribunal notes the applicant’s explanation for not being enrolled in any course from the time of cancellation of her visa until March 2016 as the fact that she wanted to wait for the outcome of the visa application and she did not want to commence a course of study that she could not complete. Whilst the Tribunal considers that this is not an implausible explanation, it does consider that the applicant must have realised her lack of enrolment or study would be considered adverse to the applicant in the Tribunal’s assessment as to whether the applicant is a genuine student. Further, the applicant had an obligation to be studying and enrolled in the first half of 2015. The Tribunal considers that if the applicant was a genuine student she would have made arrangements to enrol and study at a much earlier point in time.

7. The Tribunal is not satisfied that there are such extenuating circumstances or reasons outside of the applicant’s control that would of themselves cause the Tribunal to exercise its discretion not to cancel the visa. This is not determinative in the Tribunal deciding that he visa not be cancelled but it is a significant issue.

8. The Tribunal has no evidence to suggest that the applicant has acted in an adverse way towards the Department. The applicant indicated in the hearing that there are no persons whose visas may be cancelled consequential upon that of the applicant’s. 

9. The Tribunal accepts that the applicant would be an unlawful non-citizen if the visa were to remain cancelled which could subject her to immigration detention. However, the applicant would be in a position to apply for a Bridging visa on the basis of any reviews of the cancellation decision or whilst arrangements are made to leave the country.

10. The applicant in the hearing indicated that she does not fear serious of significant harm on returning to China. The Tribunal is not satisfied there is evidence that Australia’s non-refoulment obligations would be enlivened. The applicant indicated in the hearing that there are no children whose interests would be affected by the decision.

11. The Tribunal is not satisfied there is any evidence before it that makes relevant any other Departmental policy considerations or other relevant considerations in the exercise of the Tribunal’s discretion.

12. In summary, the Tribunal has found that the applicant in 2015 or early 2016 was not a genuine student, and for a period in 2015 failed to meet the visa condition to be enrolled in a registered course. The Tribunal is not satisfied on the evidence that the applicant is likely to be a student notwithstanding an offer of enrolment. The Tribunal considers that the applicant would have made much earlier attempts to enrol in another course if difficulties prevented her re-enrolling at the University of Sydney. The Tribunal is not satisfied that there are extenuating circumstances for the failure to re-enrol or to study or to enrol in another course at an early opportunity. The Tribunal considers that the breach is egregious in terms of the period in which the applicant has not been studying or been a genuine student.

13. The Tribunal acknowledges that hardship will be caused to the applicant in terms of her having to return to China after being in Australia for a lengthy period and from her teenage years. However the applicant is a Chinese citizen, grew up in China, and has her family in China, and therefore, while there might be adjustment difficulties, the Tribunal does not consider that the prospect of the applicant returning to China is a grave hardship. The Tribunal considers that the hardship to the applicant as a result of not being able to study is limited given the Tribunal’s findings in respect of the applicant being or being likely to be a genuine student. The Tribunal accepts that there will be hardship in terms of the applicant’s parents being disappointed in the applicant.

14. However, the Tribunal is not satisfied that these hardships, or any other factors, overcome the adverse circumstances of the applicant which have led to the ground of cancellation being made out. The Tribunal considers that the preferable view is that the visa remain cancelled.

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

    DECISION

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

    David McCulloch
    Member