Do (Migration) - [2019] AATA 5238

Do (Migration) [2019] AATA 5238 (20 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Xuan Sang Do
CASE NUMBER:  1824342
HOME AFFAIRS REFERENCE(S):           BCC2018/1799545
MEMBER:Christine Kannis
DATE:20 September 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 20 September 2019 at 3:15pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – not a genuine student – unsatisfactory course progress – extensive study gap – did not resume studies – visa scam – non-compliance with work limitation condition – mental health – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 119, 189, 359AA
Migration Regulations 1994 (Cth), r 2.43; Schedule 8, Visa Condition 8105
CASES
MIMA v Hou [2002] FCA 574

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant is not and is not likely to be a genuine student. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal on 20 August 2019 to give evidence and present arguments. The Tribunal also received evidence from the applicant’s partner, Ms Thi Tho Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent.
The Tribunal advised the applicant that it had a copy of his Provider Registration and International Student Management System (PRISMS) records. The Tribunal advised the applicant, following the procedure of s.359AA of the Act, that subject to his comment or response, this information would be the reason or part of the reason for the decision under review being affirmed. The Tribunal advised that this information was relevant because it comprised or added to evidence that he was not a genuine student. The Tribunal advised the applicant that at any time during the hearing he could seek an adjournment and consult with his representative before responding to any of the information or questions based on the information. He did not seek an adjournment at any time.
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…

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 Do (Migration)

Details

AGLC: Do (Migration) [2019] AATA 5238
Case: [2019] AATA 5238
Decision Date: 20 September 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 572 Vocational Education and Training Sector visa was cancelled. The dispute centred on whether the grounds for cancellation were made out and, if so, whether the cancellation decision should be affirmed.

The Tribunal was required to determine if the applicant was a "genuine student" under section 116(1)(fa)(i) of the Migration Act 1958 (Cth), or if the applicant had engaged in conduct not contemplated by the visa under section 116(1)(fa)(ii). The Tribunal also had to consider whether, having found a ground for cancellation, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal reasoned that the applicant's extensive study gap, unsatisfactory course progress, and failure to complete any course of study in Australia indicated that they were not a genuine student. The applicant had ceased study in March 2017 and did not seek to re-engage for over 12 months, despite being issued a Notice of Intention to Report. Furthermore, the applicant admitted to working full-time, exceeding the 40-hour per fortnight limitation imposed by visa condition 8105. The Tribunal found no compelling reasons for the applicant to remain in Australia and concluded that the cumulative circumstances weighed in favour of cancellation.

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

Full text does not contain this section.

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. Relevant to this case, these include the ground set out in s.116(1)(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 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 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), 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. There is nothing before the Tribunal to indicate that r.2.43(1C) or (1D) apply in this case. On 6 April 2016 the applicant was granted a Subclass 572 visa to study a packaged course leading to an Advanced Diploma of Leadership and Management with West Australian Institute of Further Studies (WAIFS). PRISMS shows the applicant has been enrolled in Bachelor, Advanced Diploma, Diploma and Certificate courses and a General English course. He has only successfully finished the General English course in 2016. The delegate set out the applicant’s study history and PRISMS information which included that he had not successfully completed a course in Australia, that he had ceased study in the Certificate II in Spoken and Written English course on 13 March 2017 and that he had been issued with a Notice of Intention to Report for this course and he had chosen not to appeal within the 20 working days of receiving the notice. The Tribunal put his study history and PRISMS information as set out in the delegate’s decision to the applicant. He did not dispute the information and did not dispute that he has not successfully completed any course of study.

Decision

Reasons for decision

The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and 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 572 Vocational Education and Training Sector visa.Christine KannisMemberATTACHMENT – 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

Having regard to the applicant’s study history, his poor academic progress, the substantial study gap period and his willingness to cease study to work to obtain a visa, the Tribunal finds that the applicant is not a genuine student. The Tribunal finds that the ground for cancellation in s.116(1)(fa)(i) 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 to and stay in Australia The applicant told the Tribunal his purpose in coming to Australia was to study and learn and to take this knowledge back to his country. He was granted the Subclass 572 visa in 2016 and on 13 March 2017 he ceased study to work in a [shop]. The Tribunal noted that the applicant has not successfully completed any course. The Tribunal has found that the applicant’s last day of study was 13 March 2017 and that more than 12 months elapsed from that date until he sought to re-engage in study. The Tribunal noted that he was issued with a Notice of Intention to Report and that he chose not to appeal. The applicant’s non-engagement in study for an extended period weighs in favour of visa cancellation.Whether the visa holder has a compelling need to travel to or remain in Australia The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. He said there were none. There is nothing before the Tribunal to indicate that the applicant has a compelling need to travel or remain in Australia. 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 the 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 registered course. PRISMS indicates the applicant’s course progress was unsatisfactory and his evidence was that he stopped going to school from 13 March 2017. The applicant had a significant period of non-compliance with the enrolment conditions on his visa and as such the Tribunal gives this no weight in not cancelling the visa. In the Statutory Declaration dated 8 August 2018 the applicant admitted to working full-time following the advice of [Ms A]. His Subclass 572 visa was subject to condition 8105 which limited his work to 40 hours per fortnight. The written submission and Statutory Declaration received following the hearing claim the applicant misunderstood the meaning of full-time employment. For the reasons previously discussed the Tribunal does not accept that the applicant limited his work to 20 hours per week.The degree of hardship that may be caused (financial, psychological, emotional or other hardship)