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

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).
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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 The application for review has not been withdrawn.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.
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?
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.
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]).
For matters where the…

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) [2019] AATA 6650
Case: [2019] AATA 6650
Decision Date: 27 November 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Chen, who sought review of the Minister's decision to cancel his Student (Temporary) (Class TU) visa, subclass 573. The cancellation was based on the applicant's failure to maintain enrolment in a registered higher education course and his limited academic progress, which led to the conclusion that he was not a genuine student. Mr. Chen had departed Australia prior to the Tribunal's hearing.

The primary legal issue before the Tribunal was whether the cancellation of Mr. Chen's visa under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) was justified, and if so, whether the discretion to cancel the visa should be exercised. This required the Tribunal to assess whether Mr. Chen was a genuine student and to consider various factors in exercising its discretion, including the circumstances in which the ground for cancellation arose, the applicant's purpose for travel, his compliance with visa conditions, and any potential hardship.

The Tribunal found that while Mr. Chen had faced difficulties due to the illness and death of his grandmother, these circumstances did not sufficiently explain or justify his poor academic progress or failure to complete his studies. The Tribunal concluded that these difficulties were not outside of his control or exceptional. Furthermore, the Tribunal found that Mr. Chen had no compelling need to remain in Australia, particularly as he had already departed. His failure to remain enrolled in a registered course constituted a breach of his visa conditions. The Tribunal also noted that Mr. Chen had not raised any claims of hardship resulting from the cancellation, and his departure from Australia suggested no such hardship had been caused.

Consequently, the Tribunal affirmed the decision to cancel Mr. Chen'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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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 The Tribunal has considered the applicant’s response to the Notice of Intent to Consider Cancellation (NOICC) dated 23 May 2018. 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. In assessing the above information, the Tribunal makes the following findings. 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. 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. 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 In the NOICC, the applicant indicated his main purpose in travelling to Australia was to study. 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 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) 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