Han (Migration) - [2018] AATA 3760

Han (Migration) [2018] AATA 3760 (25 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Chenchen Han
CASE NUMBER:  1618257
HOME AFFAIRS REFERENCE(S):           BCC2016/2630523
MEMBER:Mr S Norman
DATE:25 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 25 July 2018 at 12:10pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – – Subclass 573 (Higher Education Sector visa) – Genuine student – Poor attendance and progress in her courses – Applicant failed to attend tribunal hearing – Applicant failed to respond to Department NOICC letter – Grounds for cancellation outweigh hardship incurred –Decision affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 119, 189, 198, 362B,
Migration Regulations 1994, 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 17 October 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.
The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant was not a genuine student. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
By letter dated 6 July 2018 (dispatched by email to the applicant’s migration agent), the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 25 July 2018. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. The Tribunal sent two SMS hearing reminder texts to the applicant (though at the time of decision, the first was listed as having failed to be delivered).
The applicant did not appear before the Tribunal on the day and at the time and place at which her hearing was scheduled. Neither did she (or the agent) otherwise reply to the Tribunal’s hearing invitation letter (as requested). Further, the applicant’s apparent failure to pursue studies in Australia, has also satisfied the Tribunal it need not delay its decision. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
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…

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 Han (Migration)

Details

AGLC: Han (Migration) [2018] AATA 3760
Case: [2018] AATA 3760
Decision Date: 25 July 2018

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against the cancellation of her Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector visa). The applicant had failed to respond to the Department's Notice of Intention to Consider Cancellation (NOICC) and did not attend the tribunal hearing. The Tribunal was required to determine whether the grounds for cancellation existed and, if so, whether the visa should be cancelled.

The primary legal issue before the Tribunal was whether the applicant was a "genuine student" for the purposes of section 116(1)(fa)(i) of the Migration Act 1958 (Cth), or whether she had engaged in conduct not contemplated by the visa under section 116(1)(fa)(ii). The Tribunal considered the prescribed matters under regulation 2.43 of the Migration Regulations 1994, which included the applicant's course progress, attendance, and any deferrals or suspensions of her studies.

The Tribunal found that the applicant's enrolment history demonstrated a pattern of unsatisfactory course progress, non-commencement of studies, and unsatisfactory attendance across multiple educational institutions. This history, coupled with the applicant's failure to respond to the NOICC or attend the hearing, led the Tribunal to be satisfied that the ground for cancellation under section 116(1)(fa)(i) was made out. The Tribunal concluded that the applicant's present intention for residing in Australia was not for the purposes of study, and that the grounds for cancellation outweighed any hardship incurred.

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. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i) of the Act. 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. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 6 March 2013. The “stay period” for the visa was noted to cease 15 March 2018. By the Department’s Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Student visa dated 21 September 2016, the applicant was advised there appeared to be grounds for cancelling her visa pursuant to s.116(1)(fa)(i) of the Act, because it appeared that her primary purpose for holding the Student visa was not for the purpose of study, and that she may not be or not likely be, a genuine student. The applicant did not respond to the Department NOICC letter. After having considered all the evidence, 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), 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’.

Decision

Reasons for decision

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 573 Higher Education Sector visa. Mr S Norman 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.

Ratio Decidendi

Legal Principle Established

After having considered all the evidence, 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), 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’. Regarding the applicant’s purpose for travelling to and residing in Australia, she had said her proposed study plans included undertaking a UTS Foundation Studies (Standard) (Confirmation of Enrolment (COE) 57DEB372 course at the University of Technology Sydney. However, and regarding further studies: · The applicant’s enrolment in a Diploma of Design (Visual Communication) (Standard) was cancelled on 13 February 2015 due to unsatisfactory course progress; · The applicant’s enrolment in the Bachelor of Design in Interior and Spatial Design was also cancelled on 6 March 2015 due to non-commencement of studies. Further evidence about the applicant included: · On 13 March 2015, the applicant enrolled in an Intensive English (Beginner to Advance) (2 to 52 weeks) (COE 707A0324) at Castle College.· The enrolment in this course was cancelled on 5 June 2015 due to unsatisfactory attendance. · On 22 April 2015, the applicant enrolled in a Diploma of Management (COE 719DOC88) at Sydney College of Business and Information Technology.· The enrolment in this course was cancelled on 10 June 2015 due to non-commencement of studies. · On 27 October 2015, the applicant enrolled in a Diploma of Management (COE78248779) at Sydney College of Business and Information Technology.· The enrolment in this course was cancelled on 4 December 2015 for non-commencement of studies. · On 7 March 2016, the applicant enrolled in a Diploma of Management (COE 7D0D9754) at Sydney College of Business and Information Technology.· Evidence provided by the Sydney College of Business and Information Technology indicated the applicant had been issued with two warning letters in relation to unsatisfactory attendance/course progress in the Diploma of Management (COE 7D0D9754). As noted by the delegate, in the Student visa application process, the applicant had said her intention was to travel to and reside in Australia for the purposes of study. However, the applicant’s aforementioned study history does not suggest that after her arrival in Australia, she chose to reside in Australia for the purposes of study. The Tribunal is therefore not satisfied the applicant’s present intention for residing in Australia, is for the purposes of study. Regarding her extent of compliance, the Tribunal notes that Student visas are granted to non-citizens for the purposes of travelling to and studying towards an education qualification in Australia. Applicants are advised that in order to retain the visa they must remain compliant with their Student visa criteria. A primary obligation is to study, and to ensure and maintain enrolment in a registered (CRICOS) course of study, and to maintain proper attendance and course progress.