Lim (Migration)

[2017] AATA 1535

Lim (Migration) [2017] AATA 1535 (5 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr See Ken Lim

CASE NUMBER:  1616529

DIBP REFERENCE(S):  BCC2016/2432015

MEMBER:Christine Kannis

DATE:5 September 2017

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 05 September 2017 at 3:28pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – Genuine student – Application for a different visa – Change to English and Vocational courses – Limited academic progress

LEGISLATION

Migration Act 1958, s 116

Migration Regulation 1994, r 2.43

CASES

Shrestha v MIMA (2001) ALD 669
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 28 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant is not and is not likely to be a genuine student. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 4 September 2017 to give evidence and present arguments. The Tribunal also received evidence from the applicant’s sister, Ms Lim.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   Relevant law

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. Relevant to this case, these include the ground set out in s.116(1)(fa). 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 or the Tribunal 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. The proper construction of s.116(1)(fa)(i) was discussed in Shrestha v MIMA (2001) ALD 669, in which the Court held that in introducing s.116(1)(fa)(i), it was not Parliament’s intention that a genuine student who had failed in attendance and/or academic performance due to ‘innocent temporary mishap’ or ‘transient misadventure’ should face cancellation (per Madgwick J at [19]). 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 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. There is nothing before the Tribunal to indicate that r.2.43(1C) or (1D) apply in this case.

   Notice of Intention to Consider Cancellation (NOICC)

10. On 9 September 2016 the Department issued the applicant with a NOICC because it was considered that he was not and was not likely to be a genuine student.

11. On 23 September 2016 the applicant responded to the NOICC. He advised that he had applied for a Subclass 572 visa and following refusal of the application, he was seeking review. In relation to his Subclass 573 visa which was being considered for cancellation, he said he had obtained a Release Letter from Murdoch University (Murdoch) and had commenced a course at The Cantillon Institute (Cantillon). A few months into the course Cantillon informed him that it was no longer accepting enrolments for international students. He said some of his classes had been cancelled and he was not provided with any recovery classes. He said this did not provide him with comfort or security and so he changed provider and enrolled in a similar course at Australian Professional Skills Institute Pty Ltd (APSI).  

    The applicant’s academic history in Australia

12. The applicant’s academic history was set out in the Decision Record, a copy of which was provided to the Tribunal for the purposes of the review.

13. The applicant told the Tribunal that when he arrived in Australia in 2011 he did not have a study plan. His family thought he should study Business. His sister lives in Australia and she had previously studied Commerce.

14. On 18 August 2011 the applicant was granted a Subclass 572 visa to study a Certificate IV in Business from 1 August 2011 to 29 January 2012. He completed the course on 29 January 2012.

15. On 6 March 2012 the applicant was granted a Subclass 573 visa. He was enrolled in a Bachelor of Commerce at Curtin University of Technology (Curtin) and the pathway course of a Diploma of Commerce at Colleges of Business and Technology (WA) Pty Ltd (CBT). His enrolment in the Diploma of Commerce and the Bachelor of Commerce was cancelled on 29 August 2012 due to non-commencement of studies. CBT provided the Department with the applicant’s Academic Record which showed he did not successfully complete all the units in the Diploma of Commerce.

16. The applicant told the Tribunal that because he had failed his preliminary studies twice, Curtin suggested he transfer to another education provider. He said an education agent advised him to enrol at Murdoch Institute of Technology (MIT) to study English courses.

17. On 3 September 2012 the applicant was enrolled in a package of courses leading to a Diploma of Business. The pathway courses were General English, English for Academic Purpose, and Murdoch University Preparation Course. He completed the General English course on 9 November 2012 and the English for Academic Purposes course on 1 February 2013. His enrolment in Murdoch University Preparation Course the Diploma of Business was cancelled on the basis of non-commencement of studies and MIT noted that the applicant would be commencing the Diploma directly.

18. On 1 February 2013 the applicant enrolled in a Diploma of Business at MIT. He was enrolled in the Diploma of Business until 24 January 2014.  MIT provided the Department with the applicant’s Academic Record which showed he had not successfully completed all units of the Diploma of Business.

19. The applicant told the Tribunal that after completing the two English courses he felt confident to commence study in the Diploma of Business. In the beginning it went well however after six months or so he found some of the units to be challenging. As a result he decided to transfer to another education provider.

20. On 18 July 2014 the applicant was granted a Subclass 572 visa to study a Diploma of Business and an Advanced Diploma of Business at Cantillon. He completed the Diploma of Business on 4 July 2015. His enrolment in the Advanced Diploma of Business was cancelled on 26 June 2015 for non-commencement of studies. He advised Cantillon that he wanted to study a higher education course at a university. The applicant told the Tribunal he did not undertake the Advanced Diploma of Business because his family advised him to go straight to university.

21. He was advised by MIT that he needed to apply for a Subclass 573 visa to undertake the Higher Education Sector study. 

22. On 3 September 2015 the applicant was granted a Subclass 573 visa. He was enrolled in a Bachelor of Business at Murdoch and the pathway course of a Diploma of Business at MIT. His enrolment at MIT was cancelled on 15 February 2016 on the basis that he had transferred to a course at another provider. MIT advised that at the time of his withdrawal the applicant had been issued with a Notice of Intent to Report because he had failed to achieve satisfactory progress, having failed all four units of the course. His enrolment at Murdoch was cancelled on 12 February 2016. The applicant told the Tribunal that when he commenced the course he had already previously completed a few of the units. He found some of the new units very challenging and cited Statistics as being particularly difficult.

23. He said by this time he had decided he wanted to study Cookery. He said he had no interest in Business before or after he came to Australia. He had worked in a restaurant for two years or so from 2012 and from this employment he realised that he wanted to study Cookery.

24. On 16 February 2016 the applicant was enrolled in a package of courses with Cantillon which comprised of a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality. On 12 July 2016 the applicant’s enrolment in the Certificate III in Commercial Cookery was cancelled on the basis that he had transferred to a course at another provider. His enrolment in the Certificate IV in Commercial Cookery and Diploma of Hospitality was also cancelled.

25. On 14 September 2016 the applicant was enrolled in a package of courses with the Australian Professional Skills Institute Pty Ltd (APS) which comprised a Certificate IV in Commercial Cookery and a Diploma in Hospitality Management.  At the time of the delegate’s decision the applicant was studying the Certificate IV in Commercial Cookery course. The Tribunal noted that this enrolment was obtained after the NOICC had been issued to the applicant.

26. The Tribunal had regard to a letter dated 19 September 2016 from Caron Buckler, a Trainer-Assessor at APSI. Ms Buckler said the applicant was a keen and attentive student and he had completed several credit transfers. The applicant told the Tribunal that Ms Buckler had been his teacher for three months.  

    Documentary evidence provided prior to the hearing

27. Prior to the hearing the applicant provided written statements made by the applicant’s father and his sister (Ms Lim) and a Joint Submission from his representative. A statutory declaration made by the applicant on 28 August 2017 was also provided.

28. The Joint Submission contended the following:

    ·The delegate failed to give weight to the applicant’s lack of relationships in Australia and his intention to return to Malaysia at the completion of his studies. 

    ·The delegate failed to give weight to the emotional distress the applicant experienced during his studies in Australia.

    ·The delegate failed to give weight to the applicant’s economic circumstances which prevented him from returning to Malaysia during his studies in Australia.

    ·The delegate failed to give weight to the applicant’s reasons for changing courses.

    ·The delegate failed to give weight to the applicant’s potential hardship in returning to Malaysia without his industry qualifications.

    ·The applicant has maintained close ties with two friends in Malaysia.

    ·The delegate failed to give proper weight to the impact of PIC 4013.

29. The Tribunal asked the applicant about the matters raised in the Joint Submission. He said he wants to study Cookery and return to Malaysia with a Cookery qualification. A diploma or certificate obtained from overseas study is well regarded in Malaysia and he would be able to work in a restaurant. He is the youngest in the family and it will be his responsibility to look after his retired parents. He wants to open a restaurant with two friends in Malaysia. They do not have qualifications but they have funds.

30. During the time he was studying Business courses in Australia he suffered a great deal of stress because he was studying in a field based on his parents’ wishes. He had no interest in Business and he felt guilty when he failed. He spoke with a counsellor on four occasions in 2014 about his stress. The counsellor advised him to talk to his family about what he wanted to study.

31. The Joint Submission made submissions in relation to the Subclass 573 visa cancellation currently before the Tribunal as well as in relation to a decision made by the Department to refuse the applicant a Subclass 572 visa. The Subclass 572 visa is not before the Tribunal (as constituted for the current hearing) however the Joint Submission referred to an application for review of the Department’s decision having been made. The Tribunal has taken the Joint Submission into account insofar as it is relevant to the cancellation of the Subclass 573 visa decision.

32. When asked about the hardship that might result from cancellation of his visa the applicant said if he returns to Malaysia without a qualification he will not be able to secure decent employment and this will affect his ability to financially support his parents.

33. Ms Lim told the Tribunal that the applicant is very disciplined and that despite the difficulties he faced when studying Business, he persevered. She said parental pressure was the reason he continued to undertake Business studies. Their parents have now accepted that the applicant wants to study Cookery.

34. The Tribunal observed that the applicant had difficulty providing information with respect to courses he had undertaken prior to commencing Cookery studies. In particular he was unable to provide dates when he was undertaking studies with particular service providers. The Tribunal pointed out to the applicant that it would have expected him to be in a position to at least provide the history of the courses he has undertaken and the relevant education providers. The applicant said he was very nervous when giving his evidence. The Tribunal accepted this explanation.

35. The issue before the Tribunal is the cancellation of the applicant’s Subclass 573 visa which was granted for the purpose of allowing the applicant to undertake a Bachelor of Business and the pathway course of a Diploma of Business.

36. The applicant has not maintained a study plan or achieved academic progression during his stay in Australia. In relation to the Subclass 573 visa granted on 3 September 2015, the applicant has not maintained his study plan and in 2016 he changed his study from Business studies to Cookery studies. The applicant told the Tribunal that he did not have a study plan when he arrived in Australia and only decided his interest lay in Cookery after working in a restaurant for two years.

37. When asked about the courses he has completed the applicant said he had completed a Certificate IV in Business (2012), two of the package English courses (2012/2013) and a Diploma of Business (2014/15). The Certificate IV in Business and the Diploma of Business courses were Subclass 572 Lower Education Sector courses. The applicant has not completed a Higher Education Sector course for the purposes of a Subclass 573 visa.

38. The applicant’s enrolment history demonstrates that since 2012, he has continually changed his enrolment in registered courses and his enrolments have been cancelled for different reasons including non-commencement of studies and transferring to a course at another provider. PRISMS indicates that the applicant has been enrolled in several courses since he arrived in Australia and that more than half of his enrolments have been cancelled.

39. The Tribunal considers that the applicant does not have the desire or the ability to complete a Higher Education Sector course in Australia. The Tribunal considers that the applicant’s failure to complete any courses successfully since 2014 and the fact that he constantly withdrew from courses weigh strongly in favour of this conclusion.

40. The Tribunal is also concerned that from 5 February 2016 onwards, the applicant was not enrolled in (or had an offer of enrolment) in a Bachelor’s degree or Master’s degree course which was a criteria for the grant of the visa and which he was required to continue to satisfy. The Certificate III and IV in Commercial Cookery and the Diploma of Hospitality and Advanced Diploma of Hospitality were not a Bachelor’s degree or Master’s degree course, and not a principal course of a type specified by the Minister for subclass 573 visas.

41. The applicant’s representative submitted that the applicant may have received incorrect advice regarding the timing of applying for a Subclass 572 visa when he commenced his Cookery studies in 2016. His application was lodged on 17 February 2016.The delegate noted that the applicant had been given advice to apply for a Subclass 572 visa following the issuing of the Notice of Intent to Report, which was prior to 17 February 2016.

42. On the evidence before it, the Tribunal finds the applicant has failed to complete any Higher Sector Education courses and has completed only two Lower Sector Education courses since he commenced studying in Australia in 2011.

43. The applicant contended that he has realised he wants to study Cookery. To this end he enrolled in Cookery courses in 2016 however his Subclass 573 visa was cancelled and as a result his enrolment was cancelled. The Tribunal observes that the applicant may have a genuine interest in Cookery however he has only undertaken a few months of this study and PRISMS shows he did not complete any of the Cookery courses before his visa was cancelled.

44. Having regard to the applicant’s enrolment history, the Tribunal finds that the applicant is not a genuine student.

45. 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 to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

46. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, in considering whether the visa should be cancelled the Tribunal has had regard government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

47. The purpose of the student visa is to enable the visa holder to undertake study in Australia in at a particular level. In this case, since entering Australia, the applicant has held student visas at varying levels. The visa currently before the Tribunal is a Higher Education Sector visa. His current study plan is to undertake study in a Lower Education Sector course.

48. The applicant was granted a student visa Subclass 573 to undertake a course of study and to achieve a qualification from an Australian educational institution. As a visa holder of a Subclass 573, the applicant is required to comply with all visa conditions including maintaining enrolment in a registered course of study, attending satisfactorily, and progressing satisfactorily.

49. At the date of cancellation the applicant was no longer enrolled in a registered course in the sector which was the basis of the visa cancellation currently before the Tribunal. The applicant’s visa was not cancelled under the legislative provision relating to non-enrolment however the Tribunal does give some weight to the fact that his intention is not to pursue the study in Australia for which his visa was cancelled.

50. The Tribunal places weight on the fact that following his arrival in Australia the applicant has repeatedly changed courses and education providers.  The Tribunal places weight on the fact that since his arrival in Australia the applicant has not completed any Higher Education Sector course and has only completed two Lower Education Sector courses.

1. The Tribunal has found that the applicant is not, or is likely not to be, a genuine student.  Having regard to its above findings, it does not accept that the ground for cancellation arose due to extenuating circumstances beyond the applicant’s control.  The Tribunal has given considerable weight to these factors which support the cancellation of the visa.

2. The Tribunal accepts that the applicant will suffer hardship by cancellation of his visa because he will not be able to apply for a visa to return to study in Australia in the near future. The Tribunal considers on the evidence before it, that the applicant and his family members will not suffer any significant degree of hardship (financial, psychological or emotional) if his visa is cancelled and it has given little weight to this factor in considering whether to cancel the visa.

3. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

4. There is nothing to suggest, and the applicant does no claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

5. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

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

7. The Tribunal notes that a decision not to cancel the applicant’s Subclass 573 visa would not enable him to pursue his desire to study Cookery. He has an application for review pending in relation to a decision to refuse a Subclass 572 visa. If successful in that application he will be able to undertake his desired study.

   DECISION

8. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Christine Kannis
   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.