1604539 (Migration)

[2016] AATA 4410

1604539 (Migration) [2016] AATA 4410 (19 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss JUTAMAS FOOSON
Mr KHOMGRIT SAYMOON

CASE NUMBER:  1604539

DIBP REFERENCE(S):  BCC2016/756726

MEMBER:Christine Kannis

DATE:19 September 2016

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 573 Higher Education Sector visa.

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

Statement made on 19 September 2016 at 11:23am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 March 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 573 Higher Education Sector visa under s.116 (1)(fa)(i) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant is not and is not likely to be a genuine student. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. 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 first named 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 first named 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.

5. The applicant failed to attend the hearing on 19 September 2016 at 9.00 am. The applicant did not respond to the Invitation to Attend a Hearing sent to her on 25 July 2016 by the Tribunal and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.

6. On 12 and 16 September 2016 the Tribunal sent the applicant SMS hearing reminders.

7. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under section 362B of the Act.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant law

9. 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. Relevant 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?

10. 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.

11. 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 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]).

12. 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. There is nothing before the Tribunal to indicate that r.2.43(1C) or (1D) apply in this case.

13. On 14 November 2014 the applicant was granted a visa in Subclass 573 Higher Education Sector. The applicant arrived in Australia on 24 November 2014.

14. According to the Decision Record the information from the Provider Registration and International Student Management System (PRISMS) shows the applicant was enrolled in English for Academic Purposes-Beginner to Advanced (8-52 weeks) to commence on 19 January 2015 and in a Bachelor of Business to commence on 13 July 2015. The Decision Record indicates that her enrolments in both courses were cancelled due to non-commencement of studies and that she has not successfully completed a course of study and has not taken a course at a Higher Education Sector level.

15. The Decision Record stated that the applicant was not enrolled in a course of study from 19 January 2015 until 17 February 2016, a period of more than one year. At the date of the delegate’s decision she was enrolled in a Certificate II in Spoken & Written English course which commenced on 17 February 2016. The PRISMS indicates that at the date of this decision her enrolment in this course had been cancelled.

16. The PRISMS indicates that the applicant has been enrolled in several courses since she arrived in Australia and that all of her enrolments have been cancelled save for her current enrolment in a Diploma of Business at the Australian Institute of Commerce & Technology. This course is due to commence on 19 January 2019 and end on 19 July 2019. A Confirmation of Enrolment dated 8 February 2016 was provided. This course is not a Higher Sector course.

17. On 14 March 2016 the Department of Immigration and Border Protection (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because it was considered that she was not and was not likely to be a genuine student.

18. The applicant did not respond to the NOICC.

19. No further evidence was provided.

20. The Tribunal places weight on the fact that following her arrival in Australia the applicant did not commence the courses for which she was enrolled. The Tribunal places weight on the fact that since her arrival in Australia the applicant has not completed any course.  The Tribunal considers that the fact that the applicant has not completed any course in Australia, even an English course, is strong evidence that she is not a genuine student.  

21. Having regard to the applicant’s enrolment history, the Tribunal finds that the applicant is not a genuine student.

22. 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 to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

23. 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, in considering whether the visa should be cancelled the Tribunal has had regard government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

24. The purpose of the student visa is to enable the visa holder to undertake study in Australia. Since entering Australia the applicant has not successfully completed a course of study. The Tribunal finds that the applicant was not fulfilling the purpose of her travel to and her stay in Australia because she was not studying and was not enrolled in a registered course from 19 January 2015 until 17 February 2016. The Tribunal considers the breach to be significant, given the central importance of enrolment to a student visa.

25. The Tribunal also had regard to the Confirmation of Enrolment in a Diploma of Business provided. This course is not a Higher Sector course and the purpose of the applicant’s  Subclass 573 visa is to enable her to undertake study in an approved higher education course with an eligible education provider.

26. No evidence was provided by the applicant prior to the hearing with respect to the degree of hardship which would be caused by cancellation of her visa.

27. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

28. As noted earlier, the second named applicant’s visa was a consequential cancellation under section 140(1) of the Act and therefore the Tribunal does not have jurisdiction in relation to cancellation of his visa. The Tribunal accepts that the cancellation will cause some hardship to the second named applicant but does not find the hardship to be sufficient to not cancel the first named applicant’s visa.

29. Considering the circumstances as a whole, including the applicant’s failure to attend the hearing and failure to advise the Tribunal of any inability to attend, the Tribunal concludes that the visa should be cancelled.

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

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

    Christine Kannis
    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.