1604837 (Migration)

[2016] AATA 4689

1604837 (Migration) [2016] AATA 4689 (23 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Zhen Wang
Mr Jinxiang Jia

CASE NUMBER:  1604837

DIBP REFERENCE(S):  BCC2015/3205310

MEMBER:Mr S Norman

DATE:23 November 2016

PLACE OF DECISION:  Sydney

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 23 November 2016 at 3:03pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 April 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) of the Act on the basis that the applicant was 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 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.

4. The primary applicant appeared before the Tribunal on 21 November 2016 to give evidence and present arguments. The applicant husband (the secondary applicant) did not attend the Tribunal hearing, though a male support person did attend the hearing with the primary applicant. Though asked, the support person declined to provide the Tribunal with his real name. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the primary applicant’s visa (the applicant) 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 116(1)(fa)(i) of the Act. 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. The applicant (Ms Zhen WANG) was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 19 May 2014. The applicant proposed to undertake a UC English Language Program course and then a Master of Professional Accounting degree at the University of Canberra. 

11. By Notice of Intention to Consider Cancellation of that visa dated 7 March 2016, it was noted the applicant had arrived in Australia on 27 May 2014 and had not since departed.  However, based on the evidence in the PRISMS records:

    ·     The applicant completed the UC English Language Programs course from 28 July 2012 until 19 December 2014;

    ·     On 16 June 2014, the applicant’s enrolment for the Master of Professional Accounting degree was cancelled for non-commencement of studies;

    ·     PRISMS indicated the applicant remained non-enrolled until 26 November 2015;

    ·     On 27 November 2015, the applicant enrolled in a Diploma of Business at Australian Colleges of Further Education.  However, the enrolment for this course was cancelled on 22 March 2016 for non-commencement of studies.

12. Therefore, the delegate was satisfied:

    ·     The applicant had not completed studies in a registered course from 20 December 2014 until the time of the delegate’s decision;

    ·     The applicant had not maintained enrolment in a registered course at the Higher Education Sector level since 16 June 2014;

    ·     That the applicant did not commence the Master of Professional Accounting course, for which she had been granted the Higher Education Sector Student visa; and

    ·     That since arriving in Australia on 27 May 2014, the applicant had not completed any course of study other than the UC English Language Program course.

13. By email of 11 March 2016, the applicant said she had been studying in Sydney, she is “not good at English”, that she “did not read”, that she was “now in college”.  She said she would now “read the University, or higher learning, to retain this visa” (sic). At hearing, the applicant explained that she had not been able to study at the higher education level in Australia as her English language skills were not sufficiently competent. By letter of 14 March 2016,[1] the applicant also explained that she had been advised that her English was “not good enough for her to study her Masters degree at the University”.  She said she felt frustrated but had been “trying to study very hard”.  She then said she “understood her English would be a problem if she studied her Masters course”. The applicant then said she approached Auslink Investment Co Associate (apparently her prior agent), who advised her she could study a Diploma course which is easier for her and then start the Masters degree after completing the Diploma course.  She said the Department had allowed her to do this. The applicant then said that on 12 April 2015 the agent received an offer for the Diploma of Business course and the applicant paid the tuition fee of $4000 on 20 April 2015, and she later paid another $4000 to the school (being the Australian College of Further Education). The applicant did not complete these studies. She then said she had difficulty in obtaining a new COE.  She said when she had asked the agency she was told to wait and that “everything would be okay”.

    [1] DIBP – folio 36.

14. When asked at hearing, the applicant said she had not made any formal complaint about her former agent (who she believed had misled her), and she was uncertain whether any complaint had been made by the new agent. When also discussed at hearing, the applicant conceded she had not undertaken any English language course in Australia since completing the UC English Language Programs course on 19 December 2014 (she said she attempted to teach herself at home on her computer).

15. On 4 April 2016, the Department delegate cancelled the applicant’s visa. As stated to the applicant at the hearing (after having discussed her evidence), the Tribunal believed the ground for the cancellation of her visa existed. That is because the applicant had not maintained enrolment in a registered course at the Higher Education Sector level since 16 June 2014; and that the Tribunal was not satisfied the applicant’s claimed self-teaching in the English language, constituted an appropriate way to learn (for the purposes of learning English language skills to undertake a Masters degree).  The Tribunal is thus satisfied that once the applicant understood her English competence was insufficient to pursue appropriate studies, she did not take adequate steps to overcome this problem. The Tribunal also believes this is evidence that from that time the applicant was no longer a genuine student.

16. At any rate, for these reasons, the Tribunal is satisfied that the ground for cancellation in s s.116(1)(fa)(i) of the Act 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’.

18. The Tribunal proposes to accept the applicant’s initial intention in travelling to and residing in Australia was for the purposes of study. 

19. Since arriving in Australia on 27 May 2014, the applicant has substantially failed to maintain enrolment in a prescribed course of study. The Tribunal is not satisfied the applicant’s latter efforts to seek enrolment in courses of study (evidence of which was lodged at hearing) overcomes the substantial periods of time when no COE had been held.

20. By letter of 14 March 2016,[2] the applicant said if her visa is cancelled it would bring significant hardship to her and her husband. Though, at the Tribunal hearing the applicant said she had obtained a degree in computer studies in China, had worked in her father’s electronic shop (for 2 years) and would return there should she return to China. She said that in Australia, she works 14 hours per week but is still able to pay rent, food and other expenses. She does not receive money from other sources – though if she borrows money from friends she has enough left over to repay them. At any rate, notwithstanding her claims to the contrary, the Tribunal does not accept the applicant and her husband would be subject to significant financial hardship if her visa is cancelled. Alternatively, if the applicant does reside in impoverished circumstances in Australia, it may be that she (and her husband) could be substantially better off if returned to China.

    [2] DIBP – folio 36.

21. The applicant also said she could never come to Australia to study any further.  She said if her visa is cancelled the Australian school would not continue to receive her tuition fees and she said this is not good for Australian education.  She now understands her prior agent “did not do … good work for her and she was a victim of them”. However, given her lack of engagement in an appropriate course for many months, and given her failing to engage in competent English language studies, this is part of the reasons that satisfied the Tribunal the applicant’s present intention in remaining in Australia is not for the purposes of study.

22. Next, the applicant said she was unaware that her enrolment in her Diploma course and the Masters degree had been cancelled and that she was the victim of the aforementioned agent; in that the agent did not provide her with appropriate advice about her study pathway.  However, it is the applicant’s responsibility to ensure she continues to meet the criteria for the grant of her Student visa. When discussed at hearing, the applicant blamed the prior agent. She also said she did not know that the COEs had been cancelled for some three months until after the event. Her COE’s were also cancelled for non-commencement of the courses. She did say she was provided with advice that her school/s had been closed and or were being transferred, but I am not satisfied this explains the substantial periods of time the applicant was not studying in Australia; or why the applicant, who claimed to wish to pursue studies in Australia, did not know her COEs had been cancelled earlier than she claimed.   

23. Next, if the applicant’s visa is cancelled, she would become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act.  However, she would be able to apply for a BV which would allow her to remain in Australia to finalise her affairs.  She would also be subject to s.48 of the Act, which means she would have limited options in applying for further visas in Australia.  She would also be subject to PIC 4013 which means she may not be granted a temporary visa for three years from the date of the cancellation.  However, based on the evidence before me (given the applicant conceded she could return to her home country), I am not satisfied the applicant would be subject to indefinite detention.  

24. Based on the evidence before the Tribunal, I am not satisfied the applicant has been uncooperative with the Department or the Tribunal. The applicant’s husband (who did not attend the hearing), is presently working part time in Australia. His visa would automatically be cancelled if the applicant’s visa is cancelled. Based on the evidence before the Tribunal, I am also not satisfied that Australia’s international protection or other obligations would be breached if the applicant’s visa was cancelled. As stated above, at the hearing she conceded that she could return to reside at her home in China.

25. After considering the circumstances as a whole, the Tribunal is not satisfied the applicant is presently a genuine student, and I conclude the visa should be cancelled.

    DECISION

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

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

    Mr S Norman
    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.