1711022 (Migration) - [2019] AATA 3764

1711022 (Migration) [2019] AATA 3764 (28 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1711022
MEMBER:Sean Baker
DATE:28 February 2019
PLACE OF DECISION: Melbourne
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 other applicants.

Statement made on 28 February 2019 at 8:40pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – Federal Court remittal – genuine student – satisfactory course progress – enrolment in a registered course – alleged college threats to maintain enrolment – evidence of academic progress – no deferral of studies sought – family hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 119, 348
Migration Regulations 1994, Schedule 8 Condition 8202; 2.43
CASES
MIMA v Hou [2002] FCA 574
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

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 14 April 2014 made by a delegate of the Minister for Immigration and Border Protection 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).
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. The applicant provided a copy of the delegate’s decision to the Tribunal.
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 other applicants’ visas were 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 those other visas 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 them.
The Tribunal, differently constituted, affirmed the decision. That matter was remitted from the Federal Court on the basis that the previously constituted Tribunal misconstrued condition 8202(3)(a) of schedule 8 of the Migration Regulations 1994 (Cth) as the basis for the decision where there was no evidence before it that the applicant’s education provider had certified the applicant for not achieving satisfactory…

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 1711022 (Migration)

Details

AGLC: 1711022 (Migration) [2019] AATA 3764
Case: [2019] AATA 3764
Decision Date: 28 February 2019

CaseChat Overview and Summary

This matter concerned an application to affirm the decision to cancel the Subclass 572 Vocational Education and Training Sector visa of the first applicant. The applicant, who was a student visa holder, had been issued a Notice of Intention to Consider Cancellation. The dispute centred on whether the grounds for cancellation under section 116(1)(fa) of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal, constituted by Sean Baker, was required to determine these issues.

The primary legal issues before the Tribunal were whether the applicant was a "genuine student" as contemplated by section 116(1)(fa)(i) of the Act, or whether she had engaged in conduct not contemplated by the visa under section 116(1)(fa)(ii). If these grounds were established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances, including the applicant's submissions regarding family hardship and her son's upbringing in Australia.

The Tribunal found that the ground for cancellation under section 116(1)(fa)(i) was established. This was based on evidence from the applicant's college indicating she had not submitted assignments or completed any subjects for her course, and that she was not enrolled in a registered course of study at the time the notice of intention to cancel was issued. While acknowledging the applicant's claims of family hardship and her son's connection to Australia, the Tribunal concluded that these did not constitute compelling reasons to retain the visa. The Tribunal weighed these factors against the applicant's failure to demonstrate satisfactory academic progress and her lack of a compelling need to remain in Australia.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal noted that it had no jurisdiction with respect to any other applicants.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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). 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? A visa may be cancelled under s.116(1)(fa)(i) if the Minister 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. 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]). 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 decision-maker 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. None of these prescribed matters apply in this case. The applicant was sent a Notice of Intention to Consider Cancellation on 27 March 2014 by registered post. She responded on 8 April 2014. In that response she did not agree that there was a ground for cancellation. The delegate’s decision sets out that according to the Provider Registration and International Students Management Systems (PRISMS), the applicant was enrolled in an Advanced Diploma of Management at the [College 2] for the period 2 March 2013 to 28 February 2014. On 27 March 2014 the [College 2] advised that for this course the applicant had not submitted any assignments, nor had she passed or completed any subjects for the course. The decision record also notes that the applicant was not enrolled in a registered course of study when the NOICC was sent to the applicant. The applicant responded to the NOICC. In her response she said that she had been enrolled in a Diploma of marketing beginning 28 March 2014 and then an advanced diploma of marketing beginning 20 October 2014 with [College 1] and was regularly attending her course. She said she had successfully completed her certificate IV in business and her Advanced diploma of management with [College 2], and had previously completed her diploma of management with [College 3] in July 2012. She said that she had worked hard and had not received any complaints from her college. She said that the complaints from the college were baseless and not up to the mark. she said that the college was employing shrewd tactics to reserve education dollars

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION 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 other applicants.Sean BakerMemberATTACHMENT – 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

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 the visa should be cancelled.Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. I have had regard to the applicant’s response to the NOICC, her submissions and evidence to the previous Tribunal and to me.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 The applicant stated at the hearing that her purpose in coming to Australia was to study. I note that the applicant has completed a number of courses, and I accept that this was at least part of her purpose in coming to Australia. I asked her if she had a compelling need to remain in Australia and she said not really but her son had grown up in Australia and he did not know anything about Indian culture. I have considered this further below but do not consider this a compelling need to remain in Australia. On weighing all of the information before me I give this some weight towards the visa not being cancelled.the extent of compliance with visa conditions The applicant said that she had complied with all visa conditions whilst holding the student visa. I am willing to accept this but I note that visa holders are expected and can be presumed to comply with visa conditions and give this only little weight towards the visa not being cancelled.degree of hardship that may be caused (financial, psychological, emotional or other hardship) I accept that if the visa remains cancelled the applicant and her family will have to depart Australia and return to India. She said there was no reason they could not return except that they were still under debt, and I assess that the applicant and her family can return to India. I note that they will have limited options to apply for other visas but that this is the intention of the migration regime. At hearing the applicant said that she would suffer financial, psychological and emotional hardship if the visa remained cancelled but did not elaborate. She did not provide any further claims at the Department stage. In her most recent submission the applicant said that her family, and in particular her children will have difficulty adjusting to life in India and in particular that her eldest child will have some disruption to school and that the children have little familiarity with Indian culture.. I accept that the applicant, and her family, will face hardship as described if the visa remains cancelled, but I am not persuaded by the information presented that such hardship will be significant for the applicant, her husband or her children.