1622144 (Migration) - [2018] AATA 496

1622144 (Migration) [2018] AATA 496 (25 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1622144
MEMBER:Brendan Darcy
DATE:25 January 2018
PLACE OF DECISION:  Melbourne
.DECISION:  The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 25 January 2018 at 11:35am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether applicant is a genuine student – Extended period spent not studying – Limited academic progress – Purpose of study – Definition of ‘genuine student’ - Where applicant is studying primarily for prestige and remuneration – Consideration of discretion to cancel – Hardship caused does not outweigh grounds for cancellation
LEGISLATION
Migration Act 1958, ss 48, 116(1)(fa), 116(1A), 119
Migration Regulations 1994, 2.43(1C)-(1D), Schedule 4, PIC 4013, Schedule 8, Conditions 8202, 8533
CASES
Tian v MIMIA [2004] FCA 216
MIMIA v Hou [2002] FCA 574
Awan v MIMA [2001] FCA 1036
Ambakkat v MIAC [2011] (Riley FM, 30 November 2011)
Shrestha v MIMA [2001] FCA 359
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated [in] December 2016 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).
The delegate cancelled the visa under s.116(1)(fa) on the basis that the student visa holder is, 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.
The applicant appeared before the Tribunal on 1 November 2017 to give evidence and present arguments. At the end of the hearing the applicant undertook to provide additional documents to support his review application by 10 November 2017.
The applicant was represented in relation to the review by his registered migration agent but the representative did not attend the hearing. On the same date of the hearing, the applicant provided a change of contact details form to the Tribunal to cancel his authorisation of the representative to act as his authorised recipient and representative.
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
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1622144 (Migration)

Details

AGLC: 1622144 (Migration) [2018] AATA 496
Case: [2018] AATA 496
Decision Date: 25 January 2018

CaseChat Overview and Summary

This matter concerned an appeal by a citizen of Pakistan against the cancellation of his Subclass 573 Higher Education Sector student visa. The applicant had been granted the visa in November 2015 with an expiry date of September 2017, intending to undertake a bachelor degree. However, his initial enrolment was cancelled in February 2016 due to non-payment of fees, and he did not have a confirmed enrolment between February 2016 and October 2016, despite remaining in Australia. The Department of Home Affairs issued a Notice of Intention to Consider Cancellation in December 2016, and subsequently cancelled the visa, citing an extended period of no study and lack of academic progress as indicators that the applicant was not a genuine student.

The primary legal issue before the Tribunal was whether the applicant was a "genuine student" for the purposes of section 116(1)(fa)(i) of the Migration Act 1958 (Cth), which permits visa cancellation if the holder is not, or is likely not to be, a genuine student. The Tribunal was also required to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including government policy and matters raised by the applicant.

The Tribunal affirmed the cancellation decision. It found that the applicant's extended period without study, the cancellation of his initial enrolment due to non-payment, and the lack of a confirmed enrolment for a substantial period demonstrated that he was not a genuine student and that study was not his primary purpose for being in Australia. The Tribunal also noted non-compliance with visa conditions, including failure to update his address promptly. While acknowledging the applicant's claimed hardship, including potential depressive feelings, the Tribunal found these concerns to be treatable and manageable, and therefore did not outweigh the grounds for cancellation. The Tribunal concluded that the applicant's conduct and circumstances did not warrant the exercise of discretion to set aside the cancellation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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?s.116(1)(fa) - not a genuine student 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. 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, a citizen of Pakistan, was granted a class TU subclass 573 student visa for the purposes of higher education [in] November 2015 and visa was set to expire [in] September 2017. When the applicant applied for the visa, the applicant’s study plan was for a [bachelor degree] at [a particular university]. Information available to the Tribunal through the Provider Registration and International Student Management System (PRISMS) indicated that the applicant’s last day of study for this [Bachelor] was [in] December 2015 and the course was cancelled [in] February 2016 due to non-payment of fee. The same PRISMS records indicate that the applicant enrolled to study a [bachelor degree] at [Educational Institute 1]. The enrolment was confirmed [in] October 2016. Departmental records indicate that since the grant of the visa [in] November 2015, the applicant has remained in Australia all that time. The Department issued at a Notice of Intention to Consider Cancellation (NOICC) to the applicant [in] December 2016. No response was received from the applicant in relation to the NOICC prior to the cancellation by the delegate. The Department proceed to cancel the visa by issuing its cancellation notification [later in] December 2015. The Department in its decision record stated that the applicant’s visa was cancelled as there was an extensive period of no study; that there was no Confirmation of Enrolment between [February] 2016 and [October] 2015; and that there was not study between [December] 2015 and [November] 2016. The Department states that the applicant’s lack of progress and study over a substantial period of time indicated to it that the applicant was not a genuine student. (These were specifically raised with the applicant during the scheduled hearing)

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Brendan DarcyMemberATTACHMENT – 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.

Ratio Decidendi

Legal Principle Established

The applicant was notified by the Department of its decision to cancel the applicant’s visa on [in] December 2016. Consideration of discretion 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’. Having found that the applicant has not complied with section 116(1)(fa)(i) of the Act, the Tribunal must consider whether to exercise its discretion to cancel the visa. 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). On the day of the scheduling hearing and up to the time of writing this decision, the Tribunal has not received any further evidence of any kind. The Tribunal is satisfied the applicant was provided with a meaningful opportunity to give evidence and present arguments. The purpose of the visa holder’s travel to and stay in Australia Based on the findings above outlining the reasons the Tribunal does not find the applicant is or is likely to be a genuine student for the grounds of cancellation, it follows that the Tribunal finds that this is not the applicant’s purpose in travelling to and staying in Australia is not study. Accordingly, the Tribunal gives this considerable weight towards the visa being cancelled.The extent of compliance with visa conditions There is compelling evidence before the Tribunal, including PRISMS and the applicant’s own admission, to indicate the applicant did not comply with condition 8202 imposed on his visa. The Tribunal places some weight on this towards the visa being cancelled. During the scheduled hearing, the applicant also claimed that he had moved address three times (as well as being forced to sleep in a car for [a time]). The applicant claimed that he did not update the Department until one of its officials contacted the applicant. This indicated to the Tribunal that the applicant did not comply with condition 8533. The Tribunal places some weight on this towards the visa being cancelled. The applicant claimed that he did not work during this period he held the student visa under review. With no evidence to the contrary, the Tribunal accepts this to be the case and places some weight in favour of the visa not being cancelled. Degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant claimed that will be in depression if he is not permitted to study. The applicant claimed that he visited a psychologist only once and gave the applicant some strategies to deal with his mental health concerns, such as going to the gym. The applicant claimed he was not taking any medication. Information indicates that the mental health concerns experienced by the applicant are treatable and manageable and not significant or severe. The Tribunal accepts the applicant genuinely will feel some depressive feelings if he cannot remain in Australia. Therefore it places some weight in favour of not cancelling the visa.