CHENG (Migration) - [2020] AATA 1805

CHENG (Migration) [2020] AATA 1805 (11 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Li Ting CHENG
CASE NUMBER:  1821163
HOME AFFAIRS REFERENCE:               BCC2018/909759
MEMBER:L. Symons
DATE:11 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Statement made on 11 March 2020 at 12:13pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – genuine student – college closed – new college not registered for international students – limited academic progress – obtaining a release letter – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43; Schedule 8, Condition 8202
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 17 July 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(fa) of the Act on the basis that the applicant is not or is likely not to be a genuine student. On 21 July 2018, she applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 9 January 2020 to give evidence and present arguments.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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 AND FINDINGS
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(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…

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 CHENG (Migration)

Details

AGLC: CHENG (Migration) [2020] AATA 1805
Case: [2020] AATA 1805
Decision Date: 11 March 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 500. The dispute arose after the applicant ceased enrolment in a registered course, leading to the Department of Immigration's decision to cancel her visa, which the applicant sought to have reviewed.

The Tribunal was required to determine whether the grounds for visa cancellation under section 116(1)(fa) of the Migration Act 1958 (Cth) were made out. Specifically, the Tribunal had to assess whether the applicant was, or was likely to be, a genuine student, or whether she had engaged, was engaging, or was likely to engage in conduct not contemplated by the visa. The Tribunal also had to consider whether, having found a ground for cancellation, the discretion to cancel the visa should be exercised.

The Tribunal found that the applicant had ceased enrolment in a registered course and had not been enrolled between July 2017 and January 2018, which constituted a breach of visa condition 8202(2)(a). Furthermore, the Tribunal was not satisfied that the applicant had a compelling need to remain in Australia, finding her stated intention to study a carer course unconvincing as she had not yet commenced any research into such a course. The Tribunal concluded that the grounds for cancelling the visa outweighed any reasons not to cancel it.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

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 AND FINDINGS 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(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. In the present case, the applicant was granted a Student visa on 5 September 2016. On 28 May 2018, the delegate from the Department of Immigration (the Department) sent her a Notice of Intention to Consider Cancellation (NOITCC) of her Student visa. She was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why her Student visa should not be cancelled. In her response dated 22 June 2018, the applicant stated that she was enrolled in a Diploma of Business at the Adelaide College of Technology and was doing well. She stated that in June 2017 all students were advised that Adelaide College of Technology would not be continuing teaching at their Sydney Campus and students had to enrol in new colleges. She stated that they were advised in July 2017 to get in touch with the Hannay Accreditation College which offered a Diploma of Business course. She stated that in August 2017 she tried to enrol in a Diploma of Business at Hannay Accreditation College but was told that they required a Release Letter. She stated that she tried telephoning the main switchboard of the Adelaide College of Technology but the number was disconnected and the Campbelltown Campus was unattended.

Decision

Reasons for decision

Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling her Student visa. Therefore, the Tribunal concludes that the visa should be cancelled. DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.L. SymonsMemberATTACHMENT – 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)(i) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of the discretion to cancel the visa 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’.Purpose of the applicant’s travel and stay in Australia. Did the applicant have a compelling need to travel to or remain in Australia? The applicant gave evidence to the Tribunal that the purpose of her applying for a Student visa was to get a Diploma and return to Taiwan as qualifications are important in Taiwan if you wish to get a job. She stated that she is not studying currently. The Tribunal asked the applicant whether there was any reason why she needed to remain in Australia as she has already obtained an Advanced Diploma of Business. She responded that when her Student visa was cancelled she was upset and decided to apply for a review. She stated that she had to stay here until a decision was made. She stated that she is hoping to do other studies She stated that she is thinking of doing a course as a carer. The Tribunal asked the applicant where she would undertake the carer course. She responded that she has a plan to study to be a carer. When asked what her plan was in relation to where she would do the course, she responded that she has not started looking yet. She stated that she has not had time to look into it. When the Tribunal noted that she has had plenty of time since she filed the application for review with the Tribunal (on 21 July 2018), she did not respond. The Tribunal finds the applicant’s evidence to be unconvincing and is not satisfied that she has any intention of studying a course to be a carer in Australia. The Tribunal is not satisfied that she has demonstrated a compelling need to remain in Australia. The Tribunal gives this consideration no weight in her favour. The extent of compliance with visa conditions The cancellation of the applicant’s Student visa is not being considered because of non-compliance with a visa condition. However, the applicant’s evidence is that she was not enrolled in a registered course of study or studied between (15) July 2017 and January 2018. This is a breach of condition 8202(2)(a) of her Student visa. (see below) The Tribunal is of the view that being enrolled in a registered course of study and studying is crucial to fulfilling the purpose of a Student visa. This is a considerable period of time to be in breach of condition 8202(2)(a) of her Student visa. Therefore, the Tribunal does not give this consideration any weight in her favour. Degree of hardship that may be caused