Chen (Migration) - [2018] AATA 4993

Chen (Migration) [2018] AATA 4993 (22 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hao Chen
CASE NUMBER:  1701384
HOME AFFAIRS REFERENCE(S):           BCC2016/4329822
MEMBER:Stephen Witts
DATE:22 October 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 22 October 2018 at 1:42pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – genuine student – lack of academic progress – family member’s sickness – psychological condition – opportunity to rectify visa – significant study gap – duration within in Australia – re-enrolment and course cancellations – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth),
ss 116, 119

CASES
MIMA v Hou [2002] FCA 574
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 20 January 2017 made by a delegate of the Minister for Immigration and Border Protection 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)(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 appeared before the Tribunal on 17 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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 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…

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 Chen (Migration)

Details

AGLC: Chen (Migration) [2018] AATA 4993
Case: [2018] AATA 4993
Decision Date: 22 October 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal affirmed the decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The dispute concerned whether the applicant was a "genuine student" as required by section 116(1)(fa)(i) of the Migration Act 1958 (Cth), or whether their conduct was not contemplated by the visa under section 116(1)(fa)(ii). The Tribunal was required to determine if the grounds for cancellation existed and, if so, whether to exercise its discretion to cancel the visa, considering all relevant circumstances.

The Tribunal considered the applicant's enrolment history since arriving in Australia in December 2014. This history included the completion of an English Language Program and an IELTS preparation course, but also multiple course cancellations and a significant eight-month study gap. The Tribunal applied the principles from *MIMA v Hou* [2002] FCA 574 regarding the "genuine student" concept, which focuses on behaviour and actual engagement with tertiary education. Furthermore, the Tribunal had regard to prescribed matters under regulation 2.43 of the Migration Regulations 1994, which include circumstances where course participation is deferred or suspended due to the holder's conduct or non-compassionate/compelling circumstances.

The Tribunal found that the applicant had demonstrated a substantial lack of academic progress over a significant period and had not provided sufficient evidence of commitment to successful study in Australia. Despite opportunities to rectify their study situation, the applicant had not done so. The Tribunal concluded that the applicant had not complied with the conditions of their student visa and did not have a compelling need to remain in Australia, as their intended business-related courses could be completed in their home country. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.

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 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. According to the delegate’s decision record, provided to the Tribunal by the applicant, the applicant first arrived in Australia from China on 24 December 2014. This was subsequent to him being granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa which was granted on 10 December 2014. According to the delegate’s decision record the applicant has demonstrated a substantial lack of progress in his study over a significant period of time whilst choosing to remain in Australia on a visa solely existing for his engagement to study. According to the delegate’s decision record the delegate cancelled the applicant’s visa on 20 January 2017 on the basis that the applicant is likely not to be a genuine student and that his primary intention in Australia is not, or is not likely to be, to undertake study. According to the applicant’s evidence, and to the applicant’s PRISMS record, reviewed with the applicant in accordance with s.359AA, since his arrival here in 2014 the applicant has been enrolled in the following courses:a)English Language Program (4-60 weeks) from 5 January 2015 until 5 June 2015 completedb)Certificate IV in Tertiary Preparation Program cancelled on 15 June 2015c)IELTS Preparation Course (Intermediate to Advanced) finished on 17 August 2015d)Diploma of Business Administration (52 weeks) cancelled on 20 June 2016e)English for Academic Purposes (Upper Intermediate) (12 weeks) cancelled on 12 May 2017f)Bachelor of Business cancelled in July 2017g)Bachelor of Business Administration cancelled in July 2017

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.Stephen WittsMemberATTACHMENT – 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 the above reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa) 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’.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 came to Australia to study in December 2014. He claims to have come to Australia to further his education stating an Australian qualification is considered highly in China and that “my father is in business and knows that the study environment here is much better”. However there is not sufficient evidence before the Tribunal to indicate that the applicant was ever committed to studying successfully here in Australia and he has only completed an IELTS course and an English Language Program since his arrival here. However he continued to enrol and re-enrol in courses that in some cases were cancelled prior to commencement. The applicant had every opportunity to rectify his visa and course study structure before coming to Australia or when in Australia and he did not. The Tribunal therefore gives no weight to this in favour of the applicant not to cancel the visa because the applicant has not provided sufficient evidence from the time the visa was granted to indicate he was committed to making a success of his study here in Australia. There is not sufficient evidence before the Tribunal to indicate that the applicant has a compelling need to travel or remain in Australia. There is nothing preventing the applicant from studying his business related courses back in his home country of China once he has completed his study and exam requirements for study. The Tribunal is not satisfied that the applicant has a compelling need to travel to or remain in Australia which would mean his visa should not be cancelled.The extent of compliance with visa conditions The applicant was granted a student visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attendance and course progress, in a higher education registered course. The applicant has not done this and has only completed English courses, an IELTS course and an English Language Program, since he arrived in Australia on 24 December 2014. The applicant has also had a significant study gap when the applicant was not enrolled for eight months from April 2016. The applicant has had a significant period of non-compliance with conditions on his student visa and as such the Tribunal gives this no weight in not cancelling he visa.Degree of hardship that may be caused (financial, psychological, emotional or other hardship).