Nguyen (Migration) - [2020] AATA 5783

Nguyen (Migration) [2020] AATA 5783 (23 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gia Bao Nguyen
CASE NUMBER:  1920417
HOME AFFAIRS REFERENCE(S):          BCC2019/111771
MEMBER:Stephen Conwell
DATE:23 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 23 October 2020 at 5:44pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – applicant has not undertaken any study at the bachelor’s level – lengthy period of non-enrolment – lack of academic progress –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 359
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 24 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(fa)(i) of the Act on the basis that the applicant was determined 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.
The Tribunal exercised its discretion to hold the hearing by telephone.
The hearing was held during the coronavirus (COVID-19) pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. It also considered the consequences of further delay if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting the review hearing by phone.
A copy of the delegate’s decision was provided to the Tribunal by the applicant.
The applicant appeared before the Tribunal on 22 October 2020 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent who did not attend the Tribunal hearing.
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
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). 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?
A visa may be cancelled…

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.

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Details

AGLC: Nguyen (Migration) [2020] AATA 5783
Case: [2020] AATA 5783
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant whose Student visa was cancelled. The dispute centred on whether the grounds for cancellation existed and, if so, whether the cancellation was a discretionary exercise that should be affirmed.

The Tribunal was required to determine if the applicant was a "genuine student" for the purposes of section 116(1)(fa)(i) of the Migration Act 1958 (Cth), which permits visa cancellation if the Minister is satisfied that a student visa holder is not, or is likely not to be, a genuine student. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including the applicant's purpose for travel and compliance with visa conditions.

The Tribunal reasoned that the applicant's lack of academic progress, having completed only four prerequisite English courses since being granted the visa in February 2016, and a lengthy period of non-study while remaining in Australia, indicated that the applicant was not a genuine student. This satisfied the ground for cancellation under section 116(1)(fa)(i). In exercising its discretion, the Tribunal found that the applicant's frequent changes in course enrolment suggested an intention to retain the visa rather than a genuine commitment to study. Furthermore, the applicant had breached visa condition 8516 by not holding a valid Confirmation of Enrolment in a bachelor-level course for approximately 16 months.

The Tribunal concluded that the weight of these considerations supported the cancellation of the applicant's Student visa and affirmed the decision to cancel.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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). 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? A visa may be cancelled under s.116(1)(fa)(i) if the Minister 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. 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]). 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 decision-maker 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. The Department of Home Affairs (Department) granted the applicant a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 26 February 2016. His original course of study comprised of a package of subjects commencing with English and Foundation studies leading to a Bachelor of Business. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 20 March 2019, the applicant was advised that information before the delegate indicated he is not, or is likely not, to be a genuine student. The applicant responded to the NOICC letter by written statements dated 27 March, 1 April and 2 April 2019, which can be summarised as claiming:· he found it difficult to adapt to the demands of being an overseas student but his outlook improved when he met a fellow student in his English class who became his girlfriend; · in early 2017, he returned to Vietnam for a few weeks’ holiday; upon his return to Australia, he learned that his girlfriend dating someone else, which she subsequently confirmed via text. He was left heartbroken and depressed and lost his focus on his studies;· he failed tests in his Foundation course at Latrobe University and arranged a transfer to a cooking class at Acknowledge Education. His parents were not happy with this change of course as they wanted him to study business. This exacerbated his depression, making it difficult for him to concentrate on studying. Furthermore he claims that some of his classmates were unfriendly to him, which made him unhappy and stressed, so he decided to quit attending school; · he consulted a doctor and psychologist which helped with his depression;· he requests a second chance to study, fulfil his dream and rectify his past mistakes.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the weight of the considerations outlined above support cancellation of the applicant’s Student visa. The Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa. Stephen ConwellMemberATTACHMENT – 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

As conceded at hearing, the applicant has only completed four prerequisite English courses in Australia since the grant of his Student visa on 26 February 2016. His lack of academic progress and lengthy period of non-study whilst remaining onshore suggest to the Tribunal that the applicant is not a genuine student. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.1161)(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 There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.The purpose of the visa holder's travel to and stay in Australia The Tribunal is satisfied that the applicant travelled to Australia with the original purpose being to study higher education. The Tribunal notes that the applicant has completed just four prerequisite English courses since the grant of his Student visa on 26 February 2016. Furthermore between 27 October 2017 and 25 February 2019, he was not enrolled in bachelor’s level course, the level of study for which his Student visa was granted. The applicant’s frequent change of courses suggests to the Tribunal that he obtained enrolment for the purpose of retaining his Student visa rather than being motivated by a genuine intention to study. The Tribunal finds that his primary intention is not, nor is it likely to be, to engage in study. Consequently the Tribunal considers that his ongoing stay in Australia is not in line with the purpose of his Student visa. The Tribunal gives this consideration significant weighs against the applicant.The extent of compliance with the visa conditions The applicant was granted a Student visa subclass 573 to undertake a course of higher education study, and to achieve a qualification from an Australian educational institution. As a visa holder of a subclass 573 visa, the applicant is required to comply with all visa conditions including maintaining enrolment in a registered course of study, attending satisfactorily, and progressing satisfactorily. Condition 8516 attached to the applicant’s Student visa and requires that the visa holder must continue to satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. The Student visa was granted for study in a principal course of a Bachelor of Business. His enrolment in this course was cancelled on 27 October 2017 and he did not hold a valid Confirmation of Enrolment (COE) in a bachelor level course until 25 February 2019, a period of approximately 16 months. During this time he was not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas and therefore in breach of condition 8516.