Liu (Migration)

[2017] AATA 419

Liu (Migration) [2017] AATA 419 (9 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Songsong LIU

CASE NUMBER:  1606154

DIBP REFERENCE(S):  BCC2015/3494581

MEMBER:Mr S Norman

DATE:9 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 09 March 2017 at 2:30pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – Entered Australia to work – No intention of studies  – Enrolments cancelled

LEGISLATION

Migration Act 1958, s 116(1)(fa)(i), 189, 198

Migration Regulation 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 29 April 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 under s.116(1)(fa)(i) of the Act on the basis that the applicant was not a genuine student (the Department decision was lodged with the Tribunal). 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. The applicant appeared before the Tribunal on 6 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The hearing had initially been scheduled for 11 January 2017. However, the applicant lodged medical evidence that he was unwell on that day, and the hearing had been re-scheduled. The applicant did not claim to have any medical or other problems that concerned him at the hearing on 6 March 2017. Neither was there any such problem apparent to the Tribunal.

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 s.116(1)(fa) 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 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. 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.

10. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 4 April 2014. By Notice of Intention to Consider Cancellation (NOICC) of the Student visa dated 12 April 2016, the applicant was advised the Provider Registration and International Student Management System (PRISMS) indicated the applicant was granted a visa, and had planned to study a Diploma of Business and a Bachelor of Business in Australia.  The applicant entered Australia on 21 April 2014; however his enrolment in the registered course of study was cancelled on 19 August 2014. This was due to non-commencement of studies. The Department noted that the applicant had been in Australia for 23 months and had not been in any active studies since shortly after he had arrived. The applicant did not respond to the Department’s NOICC letter.  The Department cancelled the applicant’s visa on 29 April 2016.

11. The evidence before the Tribunal is that since the applicant arrived in Australia on 21 April 2014, his last date of enrolment was recorded as 19 August 2014.  His enrolment for a Diploma of Business was cancelled on 11 June 2014 for non-commencement of studies; and his enrolment for Bachelor of business was cancelled on 19 August 2014 for non-commencement of studies. The applicant also lodged documents at hearing which referred to his studies.

12. When discussed at hearing, the applicant conceded that he came to Australia to work. His agent in China had advised him he could obtain a visa to do this. It was only when the applicant arrived in Australia that he understood he had been granted a Student visa and that he was expected to study in Australia. That being said, the applicant did not study in Australia and his enrolment had been cancelled for non-commencement. He said he had commenced a course in November 2014, however, he only attended for one day and (he said) that course had also been cancelled.

13. For these reasons, 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 power to cancel the visa should be exercised.

    Consideration of discretion

14. 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 its 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’.

15. At the hearing, the applicant told the Tribunal he travelled to Australia to work. He only discovered he had been granted a Student visa after he arrived. He had not completed any course since arriving in Australia and his enrolment had been cancelled for non-commencement. In the circumstances, the Tribunal is not satisfied the applicant’s intention in travelling to and staying in Australia, was for the purposes of study.

16. The evidence before the Tribunal indicates the applicant had not studied virtually since arriving in Australia. Further, he had not been enrolled in a registered course of study, suitable for the Higher Education Student visa he had been granted, since 19 August 2014. He told the Tribunal that when he arrived in Australia, his English language competency was not adequate to allow him to continue his studies. When asked if he had undertaken any English language course since arriving in Australia, he said he had attempted to enrol on two occasions, but that he had not undertaken any such study.

17. The Tribunal accepts that if the applicant’s visa is cancelled he may be subject to some financial hardship. At hearing, he said he had paid monies up front for his tuition in Australia, and he had not recovered same. However, after arriving in Australia, he had been able to remit monies to his parents; though more recently they had been able to send him some money. If the applicant’s visa is cancelled, he would become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention in Australia. Further, if the applicant’s visa is cancelled he may apply for a BV to allow him to remain in the community, while he finalises his affairs prior to departing Australia.

18. The circumstances in which the ground for cancellation arose are due to the applicant’s not complying with the criteria for the retention of his visa. Furthermore, based on the evidence, the Tribunal is not satisfied the applicant intended to study in Australia.

19. There is no evidence the applicant has been uncooperative with the Department or the Tribunal. There is no evidence that any family members in Australia will be negatively impacted if the applicant’s visa is cancelled. There is no evidence of any consequential cancellations if the applicant’s visa is cancelled.

20. Based on the evidence before the Tribunal, I am not satisfied that Australia’s international obligations would be breached if the applicant’s visa was cancelled. When specifically asked if he would have any problems on return to his home area in his home country (Hebei, China), he said he “should not have any problems”.

21. At hearing, when it was put to him that based on his evidence, it appeared he did not come to Australia to study and would not study in Australia, at the level required by the visa he had been granted, the applicant said he did not know anything when he arrived, his agent in China said he could work in Australia (which he did for some time as a cook), he only discovered he had been granted a Student visa after he arrived, and he did not know anything about “courses or graduation”.

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

    DECISION

23. 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.