CHEN (Migration)

[2019] AATA 6650

CHEN (Migration) [2019] AATA 6650 (27 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jiezhen CHEN

CASE NUMBER:  1816755

HOME AFFAIRS REFERENCE(S):          BCC2018/857250

MEMBER:Joseph Lindsay

DATE:27 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 27 November 2019 at 4:34pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered higher education course ceased – limited academic progress – applicant departed Australia – family bereavement – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2; r 2.43

CASES

MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(fa)(i) of the Migration Act 1958 (the Act).

2. 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. On 27 November 2019, the Tribunal was advised that the applicant has departed Australia and would not be attending the hearing. The application for review has not been withdrawn. Accordingly, the Tribunal has decided to make a decision based on the available information.

4. 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

5. 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?

6. 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.

7. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s.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]).

8. 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) of the Act and r.2.43(1C) and (1D) of the Migration Regulations 1994. The prescribed matters are set out in the attachment to this decision.

9. A review of the delegate’s record of decision dated 30 May 2018 shows:

   -He was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 10 March 2016.

   -He was enrolled to study a Bachelor of Engineering - Electrical Engineering at the University of New South Wales (UNSW) from 29 February 2016 to 31 December 2019.

   -His enrolment in Bachelor of Engineering - Electrical Engineering was cancelled by UNSW citing ‘unsatisfactory course progress’.

   -UNSW reported that the applicant failed to maintain satisfactory academic performance and he was no longer permitted to continue to study in the Bachelor of Engineering.

   -As he failed to achieve an academic result that is at least satisfactory for Semester 2, 2016 of his program, therefore, he was excluded for period of two years beginning Semester 1, 2017.

   -UNSW reported that the applicant was issued with a written notice of intention to report and he lodged an internal appeal within the 20 working day period.

   -His appeal was not successful and he was provided a copy of the written statement of the outcome of the appeal.

   -He enrolled in a Bachelor of Engineering (Honours) at Western Sydney University with course period from 27 February 2017 to 05 February 2021.

   -On 08 August 2017 his enrolment was cancelled by the education provider citing ‘Cessation of Studies’ and advised that the visa holder has discontinued his enrolment on 31 March 2017.

   -The education provider has reported that the applicant did not enrol in Session 2, 2017 and he discontinued his studies without notice.

   -The applicant has departed Australia.

10. Student visas are granted for the purpose of studying towards, and achieving, an educational qualification in Australia. The principal basis for the grant of the Student visa, and expectation of any genuine student is that the applicant would give priority to their ongoing enrolment, and participation, in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course of study.

11. The applicant is not enrolled in higher education. He is not even in Australia anymore.

12. His lack of progress over a substantial period of time, and indeed the fact that he has departed Australia, strongly indicates that he is not a genuine student.

13. Based on the information before me, the Tribunal finds that the applicant’s primary intention is not likely to be to undertake study. Based on the above information, the Tribunal finds that the applicant is not a genuine student and that there are grounds for cancellation of his student visa under s. 116(1)(fa)(i) of the Act.

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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’.

    Circumstances in which ground of cancellation arose

15. The Tribunal has considered the applicant’s response to the Notice of Intent to Consider Cancellation (NOICC) dated 23 May 2018.

16. In summary, the applicant indicated that he encountered a lot of difficulties. He indicated that his grandmother became ill and passed away, and that this event had an adverse impact on his ability to study.

17. In assessing the above information, the Tribunal makes the following findings.

18. The Tribunal accepts that the applicant faced difficulties in dealing with the ill health and death of his grandmother but places low weight on this issue.

19. The Tribunal does not accept that the applicant’s personal difficulties sufficiently explain or justify his poor academic progress or his failure to complete any higher education courses whilst he has held his student visa.

20. The Tribunal does not accept that the applicant’s circumstances in which the ground for cancellation arose were in any way outside of his control or were exceptional circumstances.

    The purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia

21. In the NOICC, the applicant indicated his main purpose in travelling to Australia was to study.

22. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Indeed, the applicant definitely has no compelling need to travel to or stay in Australia because he has departed Australia. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

23. The Tribunal finds that the applicant also breached condition 8202 of his student visa because he failed to remain enrolled in a registered course of study. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

24. In his responses to the NOICC, the applicant did not raise or address any detail regarding hardship that may be caused to him and/or his family if the visa was cancelled. Indeed, it appears the applicant has not been caused any hardship because he has departed Australia. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

25. There is no evidence that the visa holder has been uncooperative with the Department in the past. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    Whether there would be consequential cancellations under s.140

26. There are no dependents on the applicant’s student visa. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

27. Given the applicant provided a copy of the delegate’s decision to the Tribunal that detailed the legal consequences of the cancellation of his student visa, the Tribunal finds that the applicant is reasonably aware of the legal consequences of the cancellation of his student visa.

28. Should the applicant’s visa be cancelled he would be subject to section 48 of the Act. If he had stayed in Australia, he would have become an unlawful non-citizen and would have been liable for detention under Section 189 and removal from Australia under Section 198 of the Act if he did not apply for another visa or depart Australia. This situation has been overtaken by events given that he has already departed Australia. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation.

29. The Tribunal places no weight on this information in the applicant’s favour.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

30. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. Indeed, he has already departed Australia.

31. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

32. The Tribunal is not aware of any other relevant matters.

33. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    Conclusion

34. The Tribunal finds that the applicant is not, or is likely not to be, a genuine student and that there are grounds for cancellation of his student visa under s.116(1)(fa)(i) of the Act.

35. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances. 

36. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

37. The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector visa (Subclass 573).

    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.