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

1. 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.

2. 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.

3. 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).

4. 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.

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

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(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?

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. 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.

11. 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

12. 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’.

13. 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.

14. 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).

15. 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.

16. 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.

17. However, since the grant of her Student visa on 6 March 2013, and at the time of the Department delegate’s decision, the applicant has been noted as having completed only one UTS Foundation Studies Course. The delegate also noted there was evidence the applicant had been contacted “on numerous occasions” regarding her poor attendance and progress in her courses (including her then most recent course). The Tribunal is satisfied the applicant has remained in Australia without any apparent material intention to continue her studies at an appropriate level. The Tribunal believes the applicant’s breach is significant.

18. Regarding the degree of hardship that may be suffered by the applicant or her family if her visa is cancelled, the Tribunal notes the applicant did not respond to the Department NOICC letter or attend the Tribunal hearing. However, the Tribunal proposes to accept the applicant or her family may suffer some limited financial or other hardship if her visa is cancelled. The applicant would also then by subject to detention under s.189 and removal under s.198 of the Act. However, I have no evidence the applicant would be subject to indefinite detention. I am also satisfied the applicant may apply for a Bridging visa in order to remain in the community to finalise her affairs prior to departing.

19. Regarding the circumstances in which the ground for cancellation arose, the applicant did not respond to the Department NOICC letter. At the time of the delegate’s decision, the Tribunal understood the applicant was then studying a Diploma of Management. However, evidence from her then education service provider (being Sydney College of Business and Information Technology), indicated she had been issued with two warning letters in relation to (ie) unsatisfactory attendance. The Tribunal has no material evidence that any circumstances to which the applicant has been subject have prevented her from studying in Australia.

20. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal (other than that discussed herein).

21. The Tribunal has no evidence that any other person/s visa would or may be cancelled if the applicant’s visa is cancelled.

22. The Tribunal notes that if the applicant’s visa is cancelled she would be subject to s.48 and would have limited options to apply for further visas in Australia. She would also be subject to PIC 4013 (meaning she could not be granted a temporary visa for three years from the date of cancellation).

23. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

24. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

25. 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.