I Gede Darmawan (Migration) - [2020] AATA 167

I Gede Darmawan (Migration) [2020] AATA 167 (23 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr I Gede Darmawan
CASE NUMBER:  1803928
HOME AFFAIRS REFERENCE(S):           BCC2017/3805918
MEMBER:Wendy Banfield
DATE:23 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 23 January 2020 at 12:30pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa – applicant was not a genuine student – unsatisfactory progress in his studies– applicant failed to maintain enrolment in a full time registered course – breached condition 8202 – lost a large sum of money through online activity –no evidence provided– worked excessive hours in breach of the terms of Student visa– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116
Migration Regulations 1994 (Cth), r 2.43, Schedule 8
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 7 February 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 under s.116 s.116(1)(fa)(i) because the applicant had not demonstrated satisfactory progress in his studies as would be expected of a genuine student. He had also changed education providers often and failed to maintain enrolment at times while holding a Student visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background
The applicant is a citizen of Indonesia and is currently 31 years old. He came to Australia on 21 May 2015 as the holder of a Subclass 572 Student visa. Since then the applicant was granted a further Student visa on 9 May 2016 that was valid until 7 June 2019.
The applicant appeared before the Tribunal on 29 October 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative did not attend the hearing.
Prior to the hearing the applicant submitted the evidence of having completed a Diploma of Accounting on 1 August 2019 including a certificate and academic transcript. The Tribunal has also taken into account evidence submitted to the Department including a Confirmation of Enrolment certificate for a Diploma of Accounting, evidence of payments made to his education provider, and a written response to the Department’s Notice of Intention to Consider Cancellation (NOICC).
Evidence of the visa applicant
The applicant advised the Tribunal that he had not received any notification from his education provider that his enrolment would be cancelled. He began to provide reasons why he did not attend college but the Tribunal asked the applicant to first explain what he had been enrolled in and what…

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.

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Details

AGLC: I Gede Darmawan (Migration) [2020] AATA 167
Case: [2020] AATA 167
Decision Date: 23 January 2020

CaseChat Overview and Summary

This matter concerned an appeal by I Gede Darmawan against the cancellation of his Subclass 572 Vocational Education and Training Sector visa. The applicant had been granted the visa to study in Australia. The Minister's delegate had cancelled the visa on the grounds that the applicant was not a genuine student and had engaged in conduct not contemplated by the visa, specifically by failing to maintain enrolment in a full-time registered course and working excessive hours. The applicant contended that he had lost a significant sum of money through online trading, which necessitated him discontinuing his studies and working full-time to recoup the funds.

The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(fa)(i) and (ii) 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, and whether his conduct, including working excessive hours and failing to maintain enrolment, was contemplated by the terms of his student visa. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to the applicant's purpose for travel, compliance with visa conditions, and the potential hardship that cancellation might cause.

In its reasoning, the Tribunal applied the principles established in *MIMA v Hou* [2002] FCA 574 regarding the "genuine student" requirement. The Tribunal found that the applicant had failed to maintain enrolment in a full-time course and had worked excessive hours, which constituted fundamental breaches of his visa conditions. While acknowledging the applicant's stated intention to start a business in Indonesia, the Tribunal was not satisfied that he had a compelling need to remain in Australia to complete an Advanced Diploma of Accounting, particularly given his prior studies and work experience. The Tribunal accepted that some hardship would be caused by the cancellation but concluded that, on balance, the grounds for cancellation were established and the discretion to cancel the visa should be exercised.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 572 visa.

Orders

Orders of the court

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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 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). 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 Tribunal has considered the claims and submissions made by the applicant as well as prescribed matters under the Act where applicable, findings and reasons relating to the conduct of the applicant and whether the applicant is or is likely to be a genuine student or whether such conduct is contemplated by the visa held. The applicant’s education history in Australia is that he was first granted a Student visa on 8 May 2013 with a study plan that included General English, a Certificate IV and Advanced Diploma of Marketing. As a Student in Australia the applicant was enrolled in Marketing, Travel and Tourism; Business Administration and Accounting with different providers. Prior to the Student visa being cancelled the applicant had completed Certificates IV in Marketing and Business Administration. After cancellation the applicant finished a Diploma of Accounting. The applicant gave evidence that he had enrolled in an Accounting course with education provider Infotech Professionals Pty Ltd and had paid the fees to begin as planned. However, the applicant claims that in March 2016 he lost a large sum of money through online currency trading that had been provided by his family for his education. As a result he had to discontinue studying and work full-time to recover the funds he had lost. The applicant did not dispute that he failed to attend college but declared his enrolment was cancelled without warning or an opportunity to provide reasons to his education provider.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.Wendy BanfieldMemberATTACHMENT – 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 these reasons, the Tribunal is satisfied 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 and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia The applicant came to Australia in 2013 to study course in English and Marketing and commenced his studies on arrival. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. In response the applicant said was planning to start his own business, a juice bar, in Indonesia after completing accounting studies in Australia. According to the applicant he needs an Advanced Certificate to do that in Bali. The applicant said he had worked in a juice bar in Australia for a time and had enjoyed it. He submitted the education standard in Australia was better than in Bali. The Tribunal accepts the applicant may wish to remain in Australia to continue his studies but is not satisfied he needs to complete an Advanced Diploma of Accounting in order to achieve his plans in Bali. He has already completed studies in Business Administration and Accounting and according to his evidence, has some work experience in the type of business he wants to operate. As such, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia. · the extent of compliance with visa conditions The applicant gave evidence that he did not comply with other visa conditions, specifically the work limitation attached to his Student visa. Failure to maintain enrolment or engage in a course of study; and working more than is permitted while holding a Student visa are fundamental breaches that weigh against the applicant in this case.· degree of hardship that may be caused (financial, psychological, emotional or other hardship) The Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant acknowledged his mistakes that led to his visa being cancelled. He expressed being upset emotionally as a result of the Department’s findings that he was not a genuine student and indicated he wants to return to his studies. He also submitted that he paid approximately $6,000 in fees to his educations provider prior to his enrolment being cancelled. The Tribunal accepts there will be a degree of hardship caused because of the applicant’s visa being cancelled and affords some weight in his favour in considering this criterion.