Miao (Migration)

[2018] AATA 1663

Miao (Migration) [2018] AATA 1663 (3 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HONGYI Miao

CASE NUMBER:  1615749

DIBP REFERENCE(S):  BCC2016/2474920

MEMBER:Mr S Norman

DATE:3 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 03 May 2018 at 12:20pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Genuine student – Non-appearance at hearing – Non-commencement of studies – Completion of studies – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 119, 362B
Migration Regulations 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 20 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 under s.116(1)(fa) of the Act on the basis that the applicant was found not to be a genuine student. 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. By letter dated 14 November 2017, the Tribunal wrote to the applicant (by email) advising that it had considered all the material before it relating to his application. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 3 May 2018. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  On 15 November 2017, the applicant responded by email, and advised he wished to attend the hearing.

4. Subsequently, the Tribunal issued two hearing reminder SMS texts to the applicant (on 26/04/2018 & 2/05/2018). However, no further response was received.

5. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

6. 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

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) 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?

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. 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.

9. 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]).

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. That being said, the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 2 February 2015. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 31 August 2016, the applicant was advised there appeared to be grounds for cancelling his visa under s.116(1)(fa) of the Act, as it appeared that his primary purpose for holding a Student visa is not for the purposes of study and that he is not, or likely not to be, a genuine student. The applicant did not respond to the NOICC letter. Neither did the applicant provide any further evidence to the Tribunal.

12. Based on the evidence before it, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa) 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

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 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’.

14. Regarding the purpose of the applicant’s travel to and stay in Australia, when applying for the Student visa the applicant claimed he wished to study a Master of Accounting and Marketing at the University of Adelaide (2 March 2015 – 31 December 2016). However, information available on the Provider Registration and International Student Management System (PRISMS) indicated the Confirmation of Enrolment (COE) for the aforementioned course was cancelled on 17 March 2015 due to non-commencement of studies. Information on PRISMS also indicated the applicant obtained a further COE for Realworld General English 4 Skills (Beginner to Upper Intermediate - 27 June 2016 to 9 September 2016). However, this COE was subsequently cancelled on 29 August 2016 due to non-commencement of studies. PRISMS also indicated the applicant held valid enrolments in Realworld General English 4 Skills (Beginner to Upper Intermediate – 7 November 2016 to 20 January 2017); and Realworld General English 4 Skills (Beginner to Upper Intermediate – 20 March 2017 to 9 June 2017).

15. Though not critical to this decision, based on the evidence the Tribunal understands the applicant did not maintain the study plan he outlined when he applied for the Student visa. More importantly, the Tribunal notes that at the time of the Department decision, being some 18 months after the Student visa was granted, the applicant had not completed any course of study despite remaining in Australia. Accordingly, the Tribunal is not satisfied the applicant’s current intention for remaining in Australia, is for the purposes of study.

16. Regarding the extent of the applicant’s non-compliance with any conditions to which his visa was subject, the Tribunal notes the grant of a Student visa, allows non-citizens to travel to and reside in Australia for the purposes of study; and with no more than a two month gap in enrolment in a registered course of study. However, the applicant has failed to complete any study and has remained in Australia.

17. Regarding the degree of hardship that may be caused to the applicant or his family, though no evidence of hardship was provided, the Tribunal proposes to accept that if the applicant’s visa is cancelled he may be subject to some financial hardship. He may also be detained under s.189 and removed under s.198 of the Act. However, I am not satisfied he would be subject to indefinite detention. I also am satisfied the applicant would be able to hold his Bridging visa for a time in order to remain in the community to settle his affairs prior to departing.  

18. Next, if the applicant’s visa is cancelled, he will also be subject to s.48 (which means he would have limited options for applying for a visa in Australia); and PIC 4013 (he may not be granted a temporary visa for three years from the date of the cancellation).

19. Regarding the circumstances in which the ground cancellation arose, at the time of the delegate’s decision, the applicant had failed to complete any studies though remaining in Australia for 18 months.  No other material circumstances are known.

20. Next, the Tribunal has no evidence the applicant has been uncooperative with the Department or the Tribunal. The Tribunal has no evidence that any other persons visa would or may be cancelled if the applicant’s visa is cancelled. Regarding whether Australia’s international obligations would or may be breached as a result of cancelling the applicant’s visa, there is no information before the Tribunal which indicates same would be breached if the applicant’s visa is cancelled.

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

    DECISION

22. 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.