1510079 (Migration)

[2016] AATA 3272

1510079 (Migration) [2016] AATA 3272 (15 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SUWIMOL LANGKAPIN

CASE NUMBER:  1510079

DIBP REFERENCE(S):  BCC2015/1078956

MEMBER:Antoinette Younes

DATE:15 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 15 February 2016 at 10:41am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 July 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s 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 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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   INVITATION TO A HEARING

4. On 6 January 2016, the Tribunal wrote to the applicant advising that the Tribunal has considered the material before it and has been unable to make a favourable decision on this information alone. The Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments at a hearing listed on 12 February 2016.  In the letter, the Tribunal advised the applicant that if she does not attend the scheduled hearing and an adjournment has not been granted, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal. The Tribunal also advised the applicant that it could also dismiss the matter without any further consideration of the application. 

5. The letter of 6 January 2016 was sent to the email address provided by the applicant.  The Tribunal received a delivery failure message relating to another email address which was not used by the Tribunal.  Information Technology at the Tribunal confirmed that the delivery failure related to another email address ‘connected’ to the applicant’s private email address which she had provided.  The Tribunal is satisfied that the hearing invitation was sent to the email address provided by the applicant in the application for review.  The Tribunal did not receive a response to the hearing invitation.  On 4 and 5 February 2016, the Tribunal telephoned the applicant and left voicemail messages to contact the Tribunal.  The applicant did not return the calls.

6. The applicant did not attend the hearing scheduled on 12 February 2016 scheduled at 10:30 am.  At about 4:10 pm of 12 February 2016, the Tribunal received an email from the applicant confirming that she had received the hearing invitation letter but she had decided to return home.

7. In those circumstances, the Tribunal has decided to determine the matter on the basis of the available information.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

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, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

10. 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]).

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 set out in the attachment to this decision.

12. In support of the application for review, the applicant provided a copy of the delegate’s decision record in which it is noted that on 3 November 2014, the applicant commenced studying at the Australian College of Vocational Studies (ACVS/College). On 9 March 2015, the Department requested and obtained the applicant’s study records from the College which included attendance records, written assessments and academic transcript.  The information obtained revealed that the applicant’s average attendance rate is around 47% and that she has not completed any of the course units since she commenced the course on 3 November 2014.

13. On 20 April 2015, the Department sent to the applicant a notice of intention to consider cancellation to which the applicant responded on 27 April 2015. In that response, the applicant indicated that:

    a.She does not agree that there are grounds for cancellation. She attended all classes and she was never absent for a whole week; she was only absent 4 days from 29 January 2015 until 3 February 2015 when she was sick. Prior to 20 March 2015, she achieved 76% in her assignment.

    b.When she obtained her attendance records from the College, she discovered that there were many weeks where her attendance was not checked. She remembers that staff at the College were busy and she went to see them on three occasions to get the attendance sheets signed. Her teacher told her she was fine because he remembered her. This happened to another classmate. She also noticed that although she attended classes on Fridays, her attendance was not checked.

    c.This is not fair. She has studied for two vocational courses. She checked her attendance in the staffroom which showed 76% but she did not take a photograph of the sheet.

    d.In relation to completion of units, she was expected to finish six units. Last week she asked her teacher about marking of the assignments. She submitted her assignments by emails and USB. The teacher told her to be calm and that once the assignments are marked, he would upload the results in the system. She confirms that she has submitted all the assignments and the required activities but there has been a delay in the marking process and consequently the records show that she has never completed any unit.

    e.Regarding the comments that her assignment is similar to others, this could be due to the fact that the teacher provided the answers and many students had already asked the teacher. She has learnt that this is unacceptable.

    f.There are systems issues with the recording of attendance and acceptance of assessments. The teacher could not find her assignment because of the large number of students who upload their work in the one drive.  She is a good and genuine student who had completed other courses.

14. In support of her response to the Department, the applicant provided copies of:

    a.Student transcript and certificate from the Bridge Business College in relation to the completion of a certificate IV in business in July 2012.

    b.Student transcript and certificate from Bridge Business College in relation to the completion of a diploma of tourism in August 2012.

    c.Student transcript dated 28 June 2015 from the Australian College of Vocational Studies in relation to the course of advanced diploma of hospitality commencing on 3 November 2014 showing that the applicant had completed 9/35 units.

    d.Certificate and assessment transcript from IIBIT Academy of English referring to the applicant’s completion of the certificate of General English intermediate level in July 2008.

    FINDINGS AND REASONS

15. The decision record provided by the applicant in support of the application for review refers to the information available that led to the cancellation, summarised earlier in this Decision.

16. The Tribunal notes that in the decision record provided by the applicant, the applicant provided a response to the Department, outlined earlier.  The Tribunal has considered the applicant’s explanations and responses.  The Tribunal notes that the student transcript dated 28 June 2015 from the ACVS in relation to the course of advanced diploma of hospitality commencing on 3 November 2014 shows that the applicant had completed 9/35 units. However, in consideration of the evidence as a whole, and on the basis of the available information, the Tribunal finds that as at the 9 March 2015, the applicant’s average attendance rate at the College was around 47% and that she had not completed any of course units since she commenced the on 3 November 2014. The Tribunal had advised the applicant that it could not make a favourable decision on the basis of the available information. The applicant has confirmed that she has received the hearing invitation but had decided to return home. As the Tribunal has not had the opportunity to discuss the applicant’s attendance rate or unit completion, or any other relevant matters, and on the basis of the available information the Tribunal is satisfied that the applicant is not, or is not likely to be a genuine student.

17. For those 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 proceeds to consider whether the power to cancel the visa should be exercised.

18. 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.

19. 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’ such as, the purpose of the visa holder’s travel and stay in Australia, the reason and extent of any breach of a visa condition (if relevant), the degree of hardship that may be caused, the circumstances in which ground of cancellation arose, the past and present conduct of the visa holder towards the department, if the breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors, whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, whether there would be consequential cancellations under s.140, whether any international obligations would be breached as a result of the cancellation, the impact on any victims of family violence, or any other relevant matters raised by the visa holder.

20. On the basis of the available information and without having had the opportunity to discuss with the applicant matters such as the circumstances surrounding the cancellation, the Tribunal is not satisfied that there are any matters warranting the Tribunal’s favourable exercise of discretion. In reaching this conclusion, the Tribunal has carefully considered the available information, including PAM3 guidelines.

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

    DECISION

22. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training 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.