1509358 (Migration)

[2016] AATA 4142

1509358 (Migration) [2016] AATA 4142 (18 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Byungdoo Kang
Ms Ji Hyun Kim

CASE NUMBER:  1509358

DIBP REFERENCE(S):  BCC2015/895187

MEMBER:Bruce MacCarthy

DATE:18 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 572 Vocational Education and Training Sector visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 18 July 2016 at 10:41am

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 first named applicant’s (the applicant) Subclass 572 Vocational Education and Training 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 first named applicant (“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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicant appeared before the Tribunal on 12 July 2016 to give evidence and present arguments.  The Tribunal also received oral evidence the second-named applicant (his (now) ex-wife) and a social worker. 

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). 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.

   The applicant’s migration history

10. At the hearing, the applicant confirmed that he first arrived in Australia on 25 May 2008, as the holder of a Subclass 417 Working Holiday visa which had been granted 10 May 2008.  When granted, that visa was valid until 25 May 2009.  While holding that visa, he left Australia on 11 September 2008 and returned again on 7 November 2008.  On 6 February 2009, he was granted a Subclass 572 Student visa that was valid until 1 September 2011.

11. He was later two further Subclass 572 Student visas, the second of which was granted on 14 November 2013 and which is the visa cancelled on 3 July 2015.  He was granted his first two Subclass 572 visas as the dependent of his (now) ex-wife (the second-named applicant).  He was granted the third and final Subclass 572 visa as the main applicant.

12. After his Subclass 572 visa was cancelled, the applicant remained in Australia with no visa until he was granted a Bridging visa on 10 December 2015.  That visa is subject to a number of conditions, none of which prevents the applicant from studying. 

    The applicant’s marriage

13. At the hearing, the applicant told the Tribunal that he had divorced in January 2016.  His (now) ex-wife confirmed this.  They told the Tribunal that they had not informed the Department of Immigration and Border Protection (“the Department”) of their divorce.

    The applicant’s academic history

14. PRISMS records seen by the Tribunal indicate that the applicant has had 6 enrolments in registered courses in Australia, as set out below.

    ·An Advanced Diploma of Tourism course scheduled to run at the Australian College of Vocational Studies (“ACVS”) between 20 January 2014 and 19 January 2016.  The applicant had enrolled in this course on 19 October 2013 but the enrolment was cancelled on 11 March 2014 for “Non-commencement of studies.”

    ·A General English course scheduled to run at the Kingsway Institute 5 May and 16 May 2014.  The applicant had enrolled in this course on 9 May 2015 and he finished the course.

    ·A Certificate II in Business course scheduled to run ACVS between 7 July 2014 and 6 January 2015.  The applicant had enrolled in this course on 11 July 2014 and he finished the course

    ·a Certificate III in Business course scheduled to run ACVS between 19 January and 19 June 2015.  The applicant had enrolled in this course on 10 January 2015 but the enrolment was cancelled on 3 June 2015 when the applicant notified ACVS that he was withdrawing from the course his last day of study was 6 May 2015. 

    ·A Certificate IV in Frontline Management course scheduled to run at George Brown College between 20 July 2015 and 3 January 2016.  The applicant had enrolled in this course on 5 June 2015 but the enrolment has been cancelled, presumably as a result of the cancellation of his visa.

    ·A Diploma of Management course scheduled to run at George Brown College from 4 January to 17 July 2016.  The applicant had enrolled in this course on 2July 2015, but the enrolment has been cancelled, presumably as a result of the cancellation of his visa. 

    At the hearing, the applicant confirmed that these details of his enrolments were correct, with one exception.  He disputed that his first enrolment had been cancelled for non-commencement of studies, saying that he had paid fees for the course and had submitted assignments.  He also disputed that the enrolment was cancelled on 11 March 2014.

15. As discussed with the applicant at the hearing, the fact that a course is shown in PRISMS as having been “finished” does not necessarily mean that the student concerned has satisfactorily completed the course.  It simply means that, as at the scheduled end date of the course, the student concerned was enrolled in the course.  This is illustrated by the fact that, although he “finished” his Certificate II in Business course, he did not complete it successfully.  At the hearing, the applicant had presented an academic transcript for that course indicating that his completion status was “incomplete.”  Although he had completed most of the units of that course, he had not attempted 3 of them. 

    Notice of intention to consider cancellation

16. According to the decision under review (a copy of which the applicant provided to the Tribunal without comment), the Department sent him a notice of its intention to consider cancellation of his visa (“the notice”) on 30 March 2015.  It is implicit in the wording of the delegate’s decision that the notice referred to information received from ACVS to the effect that his average attendance was around 38% and that he had completed 8 of 12 units of his course.  The notice said that this information indicated that the applicant’s primary purpose for holding a student visa was not for the purpose of study and that it appeared he was not, or was likely not to be a genuine student. 

17. The applicant responded to the notice on 3 April 2015.  His response is contained at folios 10 and 11 of the Department’s file, and is summarised on page 2 of the decision record.  In brief, the applicant argued that the attendance records provided to the Department were not accurate, and that, although the results were not yet available, he had successfully completed 5 units of his course and had been given credit for a further unit.  He said that this outcome was on target at that time (approximately halfway through the course).

    Is the applicant a genuine student?

18. At the hearing, in accordance with the provisions of s.359AA of the Act, the Tribunal referred to information in PRISMS records concerning the first enrolment mentioned in the previous paragraph.  Those records indicate that the enrolment had been cancelled on the 11 March 2014 for “non –commencement of studies,” contrary to his assertion (see paragraph 14 above) that he had commenced the course and that the course was not cancelled on the date mentioned. 

19. This information was relevant because, given his earlier confirmation regarding his other enrolments, it indicated that there was a period from 11 March to 9 May 2014 when he was not enrolled in any course of study and a longer period, from 11 March to 11 July 2014, when he was not enrolled in any course of study appropriate to his Subclass 572 visa.  The information was also relevant because it indicated that, having been granted his Subclass 572 visa in November 2013, he did not actually commenced studying in any course relevant to that visa subclass until July 2014, almost 8 months later.

20. The Tribunal said that, if it were to accept this information, it may conclude that he did not commence the course for which he was granted his visa, and such a conclusion might lead it to conclude that he was not a genuine student.  This would be part of the reason for affirming the decision.  When asked to comment on this information and reminded of his right to seek more time in which to do so, the applicant elected to respond immediately.  He asserted that he had studied and attended his classes at AVCS.  He said that he had not studied after his divorce in 2016 because he was upset by that divorce. 

21. The Tribunal pointed out that it was not talking about events in 2016, but his failure to commence his first course in 2014.  The applicant said that he had commenced his course but the Tribunal pointed out that the records showed otherwise.  The applicant said he had no evidence to confirm his commencement of the course in question, but asserted that he had paid fees and had submitted relevant assignments.

22. The Tribunal acknowledged that the applicant would have paid at least some of the fees for the course at the time he enrolled.  However, the payment of fees prior to enrolment did not mean that the applicant had commenced the course.  A witness said she was a social worker and she had met him at the time he was undertaking the English language course in May 2014.  She had become aware at that time that his previous enrolment had been cancelled and that he was undertaking the English language course in order to “fill the gap” which existed before his next course was due to commence.  The Tribunal pointed out to the applicant that this evidence suggested that his enrolment in the first course had been cancelled before he commenced the English language course in May 2014.  The applicant confirmed that this was the case. 

23. The Tribunal has considered the applicant’s assertion that he commenced the tourism course but prefers to accept the evidence of the PRISMS records.  It finds, on the basis of those records, that, having enrolled, in October 2013, in an Advanced Diploma of Tourism course that was not scheduled to commence until January 2014, he did not commence that course.  It finds that his enrolment in that course was cancelled on 11 March 2014 and that he had no further enrolment in any course of study until 9 May 2014, when he enrolled in an English language course.  It finds that he had no enrolment in any course of study appropriate to his Subclass 572 visa between 11 March and 11 July 2014.

24. At the commencement of the hearing, the applicant provided the Tribunal with a copy of his attendance records at ACVS between 3 September 2014 and 4 March 2015.  These records cover part of the period of his Certificate II course (namely the period from 3 September to 28 November 2014) and part of the period of his Certificate III course (namely the period from 19 January to 4 March 2015). 

25. According to these records, the applicant attended on 12 days out of a possible 30 during the period 3 September to 28 November 2014, which represents an attendance rate of 40%.  In that period, he last attended on 31 October 2014 and then missed 12 successive days of classes.  In the period 19 January to 4 March 2015, he attended a total of 7 out of 20 possible days (an average of 35%) with 4 days of absences following his last attendance on 24 February 2015. 

26. As discussed with the applicant at the hearing, in accordance with the provisions of s.359AA of the Act, ACVS has advised that his rate of attendance while undertaking the Certificate II in Business course was 61%.  While he was undertaking the Certificate III course, his attendance was 23%.  A staff member spoke to the applicant regarding his low attendance on 10 and February 2015, and he was sent a written warning about his attendance on 25 February 2015.  Approximately 2 months later, on 28 April 2015, he was sent a “caution letter” regarding his attendance.   This second letter mentioned that more than 50% of his assessments for the relevant period were graded as either “not yet competent” or “not completed.”  The letter said that he was required to enter an intervention strategy program.  A class teacher spoke to the applicant regarding his low course progress and attendance on 6 May 2015 and noted that he said he was looking to move to another education provider.  As noted above, 6 May 2015 was the applicant’s last day of study in that course. 

27. The Tribunal said that this information was relevant to the review because it suggested that, throughout the period he was studying the 2 courses in question, he was not applying himself diligently to his studies.  If it were to accept the information, it may conclude that he was not a genuine student and not likely to be one.

28. When the Tribunal asked the applicant to respond to the information provided by ACVS and reminded of his right to seek more time in which to do so, he elected to respond immediately.  He said that on occasions, teachers had not brought attendance books to his class and sometimes I were taught by replacement teachers.  He said that teachers themselves often came late to class and that was the reason for his low recorded level of attendance.  He said that he had submitted assignments as required. 

29. At the commencement of the hearing, the applicant had provided a number of documents which he said showed that he had submitted assignments.  Following the hearing, the Tribunal perused those documents in detail.  Most of them documents (see folios 51 to 82 of the Tribunal’s file) do not bear the applicant’s name, and there is nothing to confirm that the applicant submitted the relevant assignments to the College.  While some of the assignments (see folios 83-92 of the Tribunal’s file) bear the applicant’s name and student ID, they also bear the date “13/2/2014.” 

30. On their face, the documents appear to relate to assignments submitted in connection with the applicant’s Certificate III in Business course, specifically to a unit of study identified as “BSBWHS302A.”  However, he also had presented to the Tribunal an academic transcript for the Certificate III course (see folio 97 of the Tribunal’s file), which indicates that the applicant did not commence the course in question until 19 January 2015, and that he did not attempt the unit identified as “BSBWHS302A.”  The Tribunal therefore finds that the documents bearing his name and purporting to be evidence of his submission of assignments for that course unit are fabrication. 

31. The Tribunal notes also that the documents which do not bear his name relate to course units identified as “BSBCUS301A,” “BSBINN301A” and “BSBLED401A.”  However, according to the transcript he provided, he only attempted one of these 3 course units, namely the last one.  His grade for that unit was “not yet competent.”  The academic transcript does not mention a unit with the first number, though it mentions a unit with the same unit name but a slightly different unit number.  The transcript indicates that the applicant did not attempt that unit.  The transcript also mentions that the applicant did not attempt the second mentioned unit.  Given this information, and the finding in the previous paragraph, the Tribunal finds that the documents which do not bear his name are also fabrications.

32. While, on the basis of the academic transcripts provided by the applicant, the Tribunal accepts that he undertook a number of course units in both courses, particularly the Certificate II course, it finds that the applicant failed to achieve competency in any of the units he attempted in his Certificate III course

33. In all the circumstances, the Tribunal prefers to accept the evidence provided by AVCS regarding the applicant’s attendance and finds that his low attendance, particularly in the Certificate III course (and to a lesser extent in the earlier course), as an indication that the applicant was not applying himself diligently to his studies.  The Tribunal does not accept the applicant’s explanation that the records are inaccurate.

34. After in electing to withdraw from ACVS, the applicant enrolled in subsequent courses at George Brown College.  At the hearing, the applicant said that he had studied at that College until November 2015.  He has not submitted any evidence of such study though he asserted at the hearing that he had submitted some assignments.  He told the Tribunal that he did not study in 2016 because he was upset about his divorce.  He acknowledged that he had not satisfactorily completed either of the courses in which she had enrolled at George Ground College.

35. While the Tribunal has noted his evidence that he was upset by the his divorce, the fact remains that the applicant was first granted his student visa in November 2013 but has not satisfactorily completed any qualification in the Vocational Education and Training sector.

36. At the hearing, the Tribunal mentioned the fact that the applicant had not enrolled in any course of study in Australia until 2013, despite the fact that he had been in Australia for a long time.  It asked him why,, if the applicant had genuinely wished to study in Australia, he had waited until late 2013 to enrol in courses and seek a student visa in his own right.  He said that he had suffered from back pain.  The Tribunal said that, it could infer that, having come to Australia on a working holiday visa which only entitled him to a 12 month stay, he had sought to prolong his stay in Australia for applying for student visas, without any serious intention of undertaking study.

1. In response, the applicant said that he wanted to study and he wanted to stay in Australia.  The Tribunal asked if he was saying that he enrolled in courses in order to allow himself to stay in Australia.  He said that he wanted to do both.  However, in all the circumstances, the Tribunal is of the opinion that the applicant only enrolled in courses of education in order to provide an excuse for remaining in Australia.  The fact that he did not commence the course he originally enrolled in, and did not diligently attend to later studies support such a view.

2. In all the circumstances as discussed above, the Tribunal is satisfied that the applicant is not, and is likely not to be, a genuine student. 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.

3. 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

4. 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, whether the visa holder has a compelling need to travel to or remain in Australia

5. The applicant first came to Australia in May 2008, as the holder of a working holiday visa.  As he confirmed at the hearing, he was later granted two student visas as a member of the family unit of his then wife.  He was granted a student visa in his own right in November 2013, at which time he was enrolled in the first of the courses mentioned in paragraph 14 above.  However, he did not commence that course, and it was not until May 2014 that he enrolled in a short English language course.  He did not commence a substantive course in the Vocational Education and Training sector until July 2014.

6. As the Tribunal has found that the applicant is not a genuine student and is not likely to be one, the Tribunal does not believe the applicant has any compelling need to remain in Australia.

   The extent of compliance with visa conditions

7. The delegate’s decision record does not mention any specific of any visa condition.  At the hearing, the Tribunal discussed with the applicant evidence that he had failed to maintain an enrolment in a course of study appropriate to his visa between March and July 2014.  However, while this could be seen as a breach of Condition 8202 of his visa, the Tribunal has taken the lack of an enrolment into account in deciding that the applicant was not a genuine student.  It does not believe it should use the same fact as a further negative factor in the assessment of whether or not the visa should be cancelled.

   The degree of hardship that may be caused

8. 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. 

9. The applicant’s ex-wife was affected by the decision to cancel the applicant’s visa at the time that decision was made.  Prior to the hearing, she was given the opportunity to make written submissions on her situation as it was affected by the  possible cancellation of the applicant’s visa.  She made no written submissions and neither she nor the applicant made any submissions on this point at the hearing.  Her situation, as it affects the matter before the Tribunal is further discussed below.

   Whether there would be consequential cancellations under s.140

10. Because the applicant’s visa was cancelled, the visa held by his ex-wife was cancelled under s.140 of the Act.  However, the applicant has given evidence that he and she were divorced in January 2016.  It is not clear whether or not marriage had broken up at the time the decision to cancel the applicant’s visa was made.

11. Had they not been divorced, the fact that her visa would be subject to cancellation under s.140 in the event of the applicant’s visa being cancelled would possibly constitute a factor in favour of the visa not been cancelled.  However, as discussed with the applicant and his ex-wife at the hearing, the fact that they are now divorced means that she has not been a part of his family unit for some time.  Therefore, the circumstances which permitted her to be granted a visa as a member of his family unit no longer exist.  Therefore, regardless of the decision made by the Tribunal, she can no longer rely upon the circumstances of his visa for the continued existence of hers.  Therefore, the Tribunal is of the view that the fact that the applicant’s ex-wife was granted her visa because of her relationship to him is now a factor which is neither in favour of cancellation or against it.

    The circumstances in which the ground for cancellation arose

12. The ground for cancellation arose because of the applicant’s poor attendance and poor course progress was studying at ACVS, particularly in connection with his Certificate III in Business course.   The applicant has asserted that his poor attendance record resulted from inaccurate record keeping by the College but the evidence before the Tribunal does not substantiate this.  Though the applicant claimed that he was attending and submitting assignments, the Tribunal has found above that the evidence he submitted in support of his claim that he submitted assignments was fabricated.  The Tribunal considers that these factors strongly support a decision to cancel the visa.

    The applicant’s past and present conduct towards the Department

13. As discussed with the applicant in accordance with the provisions of s.359AA of the Act, when he was notified of the decision to cancel his visa, he was advised of the need to regularise his visa status.  However, the Department’s records indicate that he remained illegally in Australia with no visa for approximately 5 months before he was granted a bridging visa in December 2015.  At the hearing, the applicant said that he had been under the impression that, having applied to the Tribunal, a Bridging visa would be granted automatically.  Given this assertion, the Tribunal does not place great weight on his failure to hold a visa for a period, as a negative factor. 

14. The Tribunal is not aware of any other 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

15. The applicant (and, presumably, his wife) are currently in Australia with Bridging visas.  Cancellation of the visa may result in the applicant being unlawful in the event that a further Bridging visa is not granted and he were to remain in Australia.  While the situation of the applicant’s wife is not clear, given that she is no longer a member of the applicant’s family unit, there is a possibility that she may not be granted any further visa, whether substantive or bridging.  If she were not granted any further visa and she elected to remain in Australia, she might also be an unlawful noncitizen.  In such hypothetical circumstances, either or both of them may become subject to detention.  However, there is no evidence before the Tribunal to suggest that, in such circumstances, they would remain indefinitely in detention. 

16. 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.  While s.48 of the Act will apply to prevent the applicant from making a further application for visas of a variety of classes while in the migration zone, he would be able, to apply for one of the limited prescribed visa classes set out in r.2.12(1).  However, he may have to establish that there are circumstances affecting the interests of Australia or an Australian citizen, permanent resident or an eligible New Zealand citizen: PIC4013(1) and (2)(ca). 

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

17. 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

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

    Conclusion

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

    DECISION

20. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 572 Vocational Education and Training Sector visa.

21. The Tribunal has no jurisdiction with respect to the second named applicant.

    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.