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

1. 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).

2. 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.

3. 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.

4. 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.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 12 September 2018.

6. The applicant appeared before the Tribunal on 12 February 2019 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

8. 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.

9. 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]).

10. 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.

11. 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).

12. 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.

13. 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.

14. It follows that the issues to be determined by the Tribunal are:

    (a)  Does the ground for cancellation exist? And, if so,

    (b)  Should the discretion to cancel the visa be exercised?

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The applicant’s evidence at hearing included as follows:

    (a)  He has been under a lot of stress with his study in Australia which has affected his academic performance, which then made him stress more. He did not know that he was clinically depressed until he visited a psychologist. He first visited a psychologist around September 2018 at the suggestion of his parents.

    (b)  When queried as to the cause of his stress, the applicant said he could not adjust to his life in Australia because of language difficulties and the different environment. His intention when he first came to Australia was to study a Diploma of Hotel Management at Griffith University. When he came to Australia he had a confirmation of enrolment for that course. He was also enrolled in some English courses.

    (c)  He first arrived in Australia in September 2016. He was planning to study English straight away and was then planning to start the Diploma of Hotel Management. He finished the first English course and he did not pass the test so he continued to enrol in further English courses.

    (d)  In June 2018 he enrolled in a Diploma of Hospitality Management with the Queensland International Institute.

    (e)  When queried as to whether he had completed any studies in the Diploma of Hotel Management at Griffith University before he changed his studies to the Queensland International Institute, the applicant responded that he did not start studying with Griffith. His English course finished at the end of 2016 and the next thing he did was to enrol in the new course in June 2018 or thereabouts. During this gap, he was under stress and concentrating on getting better and also getting private tutoring in English. He was not allowed to officially start Hotel Management because he had not passed the English requirement.

    (f)    He still has a current enrolment for the Diploma of Hospitality Management with the Queensland International Institute. He was actively studying this course until he received the notice about his visa being cancelled. Last month he was granted a bridging visa which allowed him to continue his studies. There was a period after he lodged the appeal until the bridging visa was granted. After his visa was cancelled he enquired with a solicitor or migration agent who advised him that he could appeal the decision and then he would be granted a bridging visa. He thought it would be automatic but he had to apply for it and it was granted in January 2019.

    (g)  In response to Provider Registration and International Student Management System (PRISMS) records, information was put to him under s.359A of the Act, suggesting that his lack of progress in his studies, the period of nine months when he held no confirmation of enrolment and the period of at least ten months between July 2017 and May 2018 when he did not study at all, together might suggest failure to demonstrate academic progression that might be expected of a genuine student and might lead to a conclusion that the applicant is not, or is not likely to be, a genuine student. The Tribunal indicated that such a conclusion would then mean that there was a ground for cancelling the visa and that it might further be concluded that the discretion to cancel the visa should be exercised such that the decision under review to cancel the visa would be affirmed. The applicant told the Tribunal his original and continuing intention was to come to Australia to study. If his intention had not been to do that, he would not have changed to a new school and recommenced study. He did not expect that studying at Griffith University would be that hard for him and he changed to an institute with lower requirements and is able to do it. He did not know his original visa required enrolment at an institute of higher education.

    (h)  The applicant’s evidence, including in a written statement before the Tribunal, was that after receiving a few psychotherapy sessions he began to re-learn English and to communicate with people as much as possible to improve his speaking ability and communication skills. He was then recommended to a new school, which had a partnership with Griffith University and he passed the entrance exam and met their admission criteria. The new school did not require him to complete further English studies and was a bit cheaper, which made things easier for his family. Further, he was told that if he successfully completed one year at that school, he could return to Griffith University to continue his study with a language exemption. He commenced the new studies and his grades have risen and he was doing well. He realises that he is not necessarily the smartest student but he is prepared to work the hardest. He had completed about half of his studies and then the visa was cancelled.

    (i)    The Tribunal discussed with the applicant that it might be concerned that the applicant’s enrolment and cancellation history suggests he is not capable of undertaking study in Australia despite his best intentions. The applicant responded that he still wants to try his very best to continue to study in Australia.

    (j)    The Tribunal noted that despite holding a student visa from September 2016 to September 2018, a period of almost two years, the evidence is that in all of that time the applicant only completed one English course which he did not pass. The applicant responded that he passed the very first level of requirement but couldn’t pass the second requirement.

    (k)   The Tribunal discussed with the applicant that the timing of the report from his psychologist, after the NOICC, might suggest that the applicant was not genuinely interested in obtaining assistance to enable him to complete his studies, but rather he only sought psychologist evidence in relation to the visa cancellation. The applicant said he previously also obtained assistance from a friend’s mother, who is a counsellor, partly because of the cost of seeing a psychologist. He said it was very hard for him or his family to afford that cost and he is also still getting help from the friend’s mother, who is teaching him some skills to help control his emotions. He has also been taking some tablets he got from China that help him with stress.

    (l)    The Tribunal discussed with the applicant that even if the visa cancellation is set aside he does not have a current enrolment and queried whether he had spoken to the education provider about re-enrolling. The applicant responded that he had put all his attention into attending the hearing. The Tribunal noted that this might raise concerns that he is not a genuine student given he has not made enquiries about what he needs to do to get re-enrolled. The applicant responded that his migration agent told him that he cannot recommence study until he gets his student visa back so he thought all his efforts should go towards getting his student visa back, that is, to this hearing. Further, he queries whether his enrolment has actually been cancelled because he is still able to log into his student account.

    (m) He is pleading for a second chance and stated that he will not make the same mistakes again. He says he really wants to complete his studies in Australia so that he can have something to take home with him. If the visa remains cancelled and he cannot complete his planned studies, it will have a very negative impact on him personally and upon his family.

    Issue 1 - Does the ground for cancellation exist?

16. The applicant held the Subclass 500 student visa from September 2016 until it was cancelled in September 2018. His initial course was a package course incorporating an English Language Program at Griffith University from September 2016 to February 2017, to be followed by a Diploma of Hotel Management at the Queensland Institute of Business and Technology Pty Ltd from February 2017 to February 2018 and then a Bachelor of International Tourism and Hotel Management at Griffith University from February 2018 to October 2019.

17. Consistent with the applicant’s evidence, PRISMS records show that the applicant’s enrolment in the first package of courses was cancelled and that he subsequently enrolled in a number of English Language Program courses between February 2017 and July 2017, with enrolments for these courses also variously cancelled due to unsatisfactory attendance. Further the records show that in May 2018, the applicant enrolled in a Diploma of Hospitality Management at the Queensland International Institute with a course start date of 28 May 2018 and a course end date of 26 May 2019.

18. The Tribunal notes that the applicant, after receiving the NOICC on 1 August 2018, provided a letter of offer to study a Bachelor of Business at James Cook University dated 31 August 2018, suggestive of seeking out this offer to avoid cancellation. Further, the Tribunal notes that the applicant did not choose to seek to defer his course, or to apply for another student visa at a lower course level. However, notably, the applicant’s psychologist has provided a report dated 25 August 2018 which canvasses treatment directed to, among other things, helping the applicant to identify problems and improve his problem solving skills. Further the psychologist concludes that he is ‘quite confident that his (the applicant’s) problem will get better and his academic performance will also get improved with the treatment plan in due course’.

19. Given the applicant’s difficulties with English, the Tribunal holds concerns that the applicant may not have the ability to successfully complete his intended studies in Australia. The Tribunal also holds concerns about the applicant’s lack of proactive action as identified in the preceding paragraph. However, the Tribunal has taken into account that the applicant has persevered with his English studies, that he passed the entrance exam and met the admission criteria for the Diploma of Hospitality Management at the Queensland International Institute, that he had commenced these studies prior to receipt of the NOICC and that he has sought and received psychological assistance.

20. Having taken into account all of these matters, the Tribunal is not satisfied that the evidence overall supports that the applicant is not, or is not likely not to be, a genuine student.

21. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(fa) exists.

    Issue 2 - Should the discretion to cancel the visa be exercised?

22. As the Tribunal has found that the ground for cancellation does not exist, it is not necessary to consider this issue.

    DECISION

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

    Susan Trotter
    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.