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

1. 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).

2. 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.

3. The applicant appeared before the Tribunal on 9 January 2020 to give evidence and present arguments.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. 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

6. 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?

7. 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.

8. 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]).

9. 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.

10. 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.

11. 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.

12. The applicant stated that she was worried and sought advice from an Education Agent who told her that she must enrol in a course to demonstrate that she was undertaking studies as per her visa requirements. She stated that she then enrolled at Advanced Education Australia and successfully completed an Advanced Diploma of Business in June 2018. She stated that she is a genuine student. She provided the Department with a letter of completion, a Record of Results from Advanced Education Australia, her Advanced Diploma of Business dated 10 June 2018 and a statement from Australian Skills Quality Authority dated 19 June 2017.

13. The Department’s Decision Record indicates that the delegate considered the documentary evidence provided by the applicant. The delegate gave it minimal weight in her favour for a number of reasons including because according to the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) Advanced Education Australia was not an approved education provider to offer courses to international students. The delegate relied on the evidence in the Provider Registration and International Student Management System (PRISMS), information from ACT Technology Group Pty Ltd and Departmental systems. The delegate found that the applicant was not enrolled in a registered course of study between 15 July 2017 and 18 March 2018. The delegate found that she was not, or not likely to be, a genuine student and her Student visa was cancelled on 17 July 2018.

14. During the hearing, the Tribunal asked the applicant why she did not immediately enrol in another course with a different education provider when she was unable to continue her studies at the Adelaide College of Technology. She responded that she was not aware that she was not allowed to have a gap in her studies. She stated that she took her time assessing different courses. She stated that her friend told her that there was a carer course and she was looking into that.

15. The Tribunal informed the applicant that the statement from Australian Skills Quality Authority dated 19 June 2017 that she provided the Department indicates that there were 160 international students enrolled at the Adelaide College of Technology and all of them would be assisted by the Australian government’s Tuition Protection Service to find an alternative training provider or obtain a refund. The Tribunal noted that this tends to indicate that from 19 June 2017 onwards she was provided with help to find another education provider. She responded that she did not pay much attention to the letter. She stated that her English was not good and she did not read the contents of the letter. She stated that she did not know there was help for her to change her course.

16. The applicant stated that she showed her Education Agent her Diploma of Business and asked for help to find another College. She stated that she did not enrol in a carer course and decided to continue her business studies. She could not remember the name of the College she enrolled in but stated that it was near Town Hall Railway Station. She stated that she commenced the Advanced Diploma of Business in January 2018 and completed it in June 2018. However, when the Tribunal put to her that the Department states in the Decision Record that she was not enrolled in a registered course of study between 15 July 2017 and 18 March 2018 she agreed that that was correct.

17. The applicant also gave evidence that she returned to Taiwan in May 2018 to visit her mother who was sick at that time. She stated that she had finished her studies at that time and was waiting for her graduation in June 2018. She stated that she has not studied since then. The Tribunal noted her evidence that she came to Australia to obtain a Diploma and asked her why she did not return to Taiwan after she was awarded an Advanced Diploma of Business in June 2018. She responded that her Student visa had not expired and she thought she could stay in Australia and experience life here a little longer. She stated that her Student visa was valid until 2019. (The records of the Department indicate that it was valid until 28 June 2019.)

18. The Tribunal asked the applicant why she did not return to Taiwan after her Student visa was cancelled (on 17 July 2018). She responded that she had a boyfriend at that time and wanted to stay with him. She stated that she was working 20 hours a week and could support herself. She stated that she had not decided what she wanted to do in Taiwan and decided she would take her time and make a decision. She stated that she is still with her boyfriend who is an Australian citizen.

19. The records of the Department of Education are not consistent with the evidence given by the applicant in relation to the course she completed in Australia. The PRISMS records indicate that she was enrolled in a Diploma of Business from 29 August 2016 to 17 December 2017 and an Advanced Diploma of Business from 8 January 2018 to 28 April 2019 and her enrolment in both those courses was cancelled on 14 July 2017 as she left the education provider. It indicates that she then enrolled in an Advanced Diploma of Leadership and Management from 19 March 2018 to 17 March 2019 and her enrolment in that course was cancelled. 

20. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that these records are not consistent with the Record of Results and Advanced Diploma of Business from Advanced Education Australia that she had provided the Department. The Tribunal noted that there were two possible explanations; either that the records of the Department of Education are incorrect or that she was never enrolled in this course and the documents she provided the Department are fraudulent. She responded that all the matters with registration were dealt with by her (Education) Agent.

21. The Tribunal informed the applicant that it would like to make some inquiries to clarify the situation. The Tribunal requested that she provide it with her Confirmation of Enrolment (COE) in relation to the Advanced Diploma of Business and noted that in the absence of her COE the Tribunal may not accept that she had completed this course. She stated that she has no idea why she does not have the COE for this course. She stated that her (Education) Agent might know. She was given further time after the hearing to produce this document and failed to do so.

22. Following the hearing, the Tribunal sought to make inquiries with Advanced Education Australia and discovered that it had been deregistered. The Tribunal then made inquiries with the Australian Skills Quality Authority and received confirmation that Advanced Education Australia (CRICOS Code: 02917E) was approved to deliver the course BSB60215 Advanced Diploma of Business to overseas students from 15 June 2016 to 18 September 2018.

23. As it is not possible to access the records of Advanced Education Australia, the Tribunal was unable to obtain details of the applicant’s study there including how she was able to undertake an Advanced Diploma of Business when she had not completed a Diploma of Business. However, the Tribunal is prepared to give the applicant the benefit of the doubt and accept that she did undertake this course at Advanced Education Australia and that Advanced Education Australia failed to enter this information into PRISMS.

    Based on the applicant’s own evidence, she was not enrolled in a registered course of study between 15 July 2017 and January 2018 and did not study during this period. Her evidence is that she graduated with an Advanced Diploma of Business in June 2018 and did not study thereafter. Her evidence is that her Student visa was valid until 2019 (28 June 2019) and she had not decided what she wanted to do in Taiwan so she decided she would take her time and make a decision. She stated that she decided to remain in Australia, experience life here a little longer and stay with her boyfriend who is an Australian citizen. She also stated that she worked 20 hours a week during this period.

24. In view of this evidence, the Tribunal is not satisfied that the applicant had any plans or intention to study in Australia after she graduated in June 2018 notwithstanding the purpose for which she was granted the Student visa. The Tribunal finds that she is not a genuine student.

25. 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

26. 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?

27. 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.

28. 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.

29. 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.

30. 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

31. 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)

32. 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

33. The Tribunal asked the applicant what hardship, if any, would be caused to her if her Student visa is cancelled. She responded that she would not be able to continue her further education in Australia. She stated that she likes her education in Australia as it has benefited her greatly and will provide her with a brighter future in Taiwan.

34. In view of the applicant’s evidence that she applied for a Student visa to obtain a Diploma in Australia, as she has already achieved that goal and in view of the Tribunal’s findings above, the Tribunal gives this consideration no weight in her favour.

    Circumstances in which the ground for cancellation arose

35. The circumstances in which the ground for cancellation arose are referred to above. The Tribunal accepts that the de-registration of the Adelaide College of Technology in July 2017 and the need for the students to transfer to another education provider were circumstances that were beyond the applicant’s control. However, the actions and omissions that occurred thereafter were within her control and caused as a result of her failure to fulfil her responsibilities as a student in Australia and to comply with the conditions of her Student visa.

36. The applicant provided the Department with a statement dated 19 June 2017 in relation to the Adelaide College of Technology being shut down. It indicated that there were 160 international students enrolled at that college and all of them would be assisted by the Australian government’s Tuition Protection Service to find an alternative training provider or obtain a refund. When asked about this, the applicant indicated that she received a letter but did not pay much attention to it and did not read it. Her explanation was that her English was not good. She stated that she was not aware she could get help to change her course. This indicates to the Tribunal that she had little interest in her studies or in complying with the conditions of her Student visa.

37. The applicant’s evidence is that she did not enrol in a registered course of study with another education provider between July 2017 and January 2018. Her explanation for this is that she was unable to obtain a Release Letter from Adelaide College of Technology. Had she used the services of the Tuition Protection Service this would have been resolved. Alternatively, she could have sought the assistance of her Education Agent in July 2017 to resolve this issue. When she eventually did seek the assistance of her Education Agent, he or she was able to enrol her in an Advanced Diploma of Business at Advanced Education Australia (presumably without a Release Letter). Her evidence is that she commenced studying at Advanced Education Australia in January 2018.

38. Based on the applicant’s own evidence, she was not enrolled in a registered course of study between (15) July 2017 and January 2018 and was not studying during this period. This is a breach of condition 8202(2)(a) of her Student visa which requires that she be enrolled in a full time registered course of study. When the Tribunal discussed this with her during the hearing, she stated that she was not clear about this. She also stated that she was not aware that she could not have a gap between enrolments. When the Tribunal expressed surprise about this considering that she would have received a letter from the Department informing her of the conditions attached to her Student visa, she did not respond. When the Tribunal noted that it was her responsibility to comply with the conditions of her Student visa, she did not respond.

39. The PRISMS records indicate that the applicant was enrolled in a Diploma of Business from 29 August 2016 to 17 December 2017 and an Advanced Diploma of Business from 8 January 2018 to 28 April 2019 and her enrolment in both those courses was cancelled on 14 July 2017 as she left the education provider. It indicates that she then enrolled in an Advanced Diploma of Leadership and Management from 19 March 2018 to 17 March 2019 and her enrolment in that course was cancelled. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that as she was not enrolled in a registered course from 15 July 2017 to 18 March 2018 and therefore breached condition 8202(2) of her Student visa and that it should be cancelled. She declined to respond.

1. The Tribunal is of the view that the applicant’s failure to comply with condition 8202(2)(a) of her Student visa demonstrates her lack of interest in her studies in Australia and reflects poorly on whether she is a genuine student. Her evidence also indicates that she had no plan or any intention of studying in Australia after she graduated in June 2018.

2. In view of the above, the Tribunal does not give this consideration any weight in the applicant’s favour.

   Past and present behaviour of the applicant towards the Department

3. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that she has engaged in unfavourable behaviour towards the Department. The Tribunal gives this consideration some weight in her favour.   

   Whether there would be consequential cancellations under s.140 of the Act

4. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in her favour.

   Legal consequences of a decision to cancel the visa

5. The applicant gave evidence that if the Tribunal affirms the Department’s decision she may have to look at other countries that provide similar Diplomas. She stated that she is planning to spend the next one or two years continuing her education. She stated that she really needs a good education to be able to return to Taiwan and find a good job.

6. If the applicant’s Student visa is cancelled, she will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if she does not voluntarily depart Australia or resolve her immigration status. However, she may be eligible for a Bridging visa that would allow her lawful presence in Australia for a short period of time so that she can finalize her affairs in Australia before departing.

7. If the applicant’s Student visa is cancelled, she will be subject to s.48 of the Act which means she will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent her from being granted particular temporary visas for a period of three years from the date of cancellation.

8. These are the intended consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa. The Tribunal gives this consideration little weight in her favour.   

   Australia’s international obligations

9. The Tribunal asked the applicant whether there was any reason why she could not return to Taiwan. She responded that there was not.

10. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in her favour.

    Any other relevant matter

11. The Tribunal is not aware of any other relevant matter.

    CONCLUSION

12. 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

13. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    L. Symons
    Member

    
    

    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.