Ju (Migration) - [2019] AATA 652

Ju (Migration) [2019] AATA 652 (28 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Peng Ju
CASE NUMBER:  1826656
HOME AFFAIRS REFERENCE(S):           BCC2016/2704490 BCC2018/2328088
MEMBER:Susan Trotter
DATE:28 February 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Statement made on 28 February 2019 at 3:00pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – genuine student – language difficulties – changed courses – ability to successfully complete intended studies – sought and received psychological assistance – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), 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 5 September 2018 made by a delegate of the Minister for Home Affairs (the Minister) to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a citizen of the People’s Republic of China and was granted the visa on 2 September 2016 (valid until 5 September 2018) to study in Australia.
On 1 August 2018, the Department sent a Notice of Intention to Consider Cancellation (NOICC) of the visa to the applicant, pursuant to s.119 of the Act.
The delegate cancelled the visa on 5 September 2018 pursuant to s.116(1)(fa)(i) of the Act on the basis that the applicant was not, or was likely not to be, a genuine student, and that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 12 September 2018.
The applicant appeared before the Tribunal on 12 February 2019 to give evidence and present arguments.
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).
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.
In MIMA v Hou [2002] FCA 574, the Court stated 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,…

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 Ju (Migration)

Details

AGLC: Ju (Migration) [2019] AATA 652
Case: [2019] AATA 652
Decision Date: 28 February 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The dispute centred on whether the applicant was a "genuine student" as required by section 116(1)(fa)(i) of the Migration Act 1958 (Cth). The applicant had experienced language difficulties, changed courses, and sought psychological assistance, which the Tribunal considered in its review.

The primary legal issue before the Tribunal was to determine whether the ground for cancellation, namely that the applicant was not, or was likely not to be, a genuine student, was made out. This required the Tribunal to consider the meaning of "genuine student" as interpreted in case law, and to assess the applicant's circumstances in light of the relevant provisions of the Migration Act and Migration Regulations 1994, including prescribed matters to which regard may be had. The Tribunal also had to consider whether, if the ground for cancellation was established, it was appropriate to exercise the discretion to cancel the visa, having regard to various factors outlined in departmental guidelines.

The Tribunal reasoned that the ground for cancellation was not established in this instance. It considered the applicant's evidence, including their language difficulties, course changes, and the psychological assistance received. The Tribunal applied the principles from *MIMA v Hou* [2002] FCA 574 regarding the "genuine student" concept, which extends beyond mere literal compliance with visa conditions to encompass the student's conduct and behaviour. Having found that the ground for cancellation did not exist, the Tribunal did not need to consider the exercise of discretion.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) 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

The applicant appeared before the Tribunal on 12 February 2019 to give evidence and present arguments.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). 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. In MIMA v Hou [2002] FCA 574, the Court stated 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. This is not a case in which the prescribed matters are in issue. It is clear that the matters which may be considered go beyond the prescribed matters: s.116(1A). 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. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise the discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances, including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’ including:(a) The purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia;(b) The extent of compliance with visa conditions;(c) The degree of hardship that may be caused (financial, psychological, emotional or other hardship);(d) The circumstances in which the ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;(e) Past and present conduct of the visa holder towards the Department;(f) If the breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors;(g) Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention;(h) Whether there would be consequential cancellations under s.140;(i) Whether any international obligations would be breached as a result of the cancellation; and(j) Any other relevant matters.

Decision

Reasons for decision

As the Tribunal has found that the ground for cancellation does not exist, it is not necessary to consider this issue.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.Susan TrotterMemberATTACHMENT – 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

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.Susan TrotterMemberATTACHMENT – 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.