Qi (Migration) - [2018] AATA 4991

Qi (Migration) [2018] AATA 4991 (2 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Chang Qi
CASE NUMBER:  1720450
HOME AFFAIRS REFERENCE(S):           BCC2014/3417461
MEMBER:Christine Kannis
DATE:2 November 2018
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 02 November 2018 at 8:24am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – course enrolment – transfer to a vocational course – failure to attend course – work hours inconsistent with information provided by employer – decision under review affirmed
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

This is an application for review of a decision dated 30 August 2017 made by a delegate of the Minister for Immigration and Border Protection 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 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal on 9 October 2018 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Mandarin and English languages.
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
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?
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.
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

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: Qi (Migration) [2018] AATA 4991
Case: [2018] AATA 4991
Decision Date: 2 November 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 Higher Education Sector visa was cancelled. The applicant, who arrived in Australia in February 2015, initially enrolled in English language courses and a Bachelor of Business. After completing the English courses, her enrolment in the Bachelor of Business was cancelled in July 2016 when she transferred to a Diploma of Remedial Massage, a vocational course. In August 2017, the Department of Immigration and Border Protection issued a notice of intention to cancel her visa on the grounds that she was not, or was unlikely to be, a genuine student.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) existed, specifically whether the applicant was a genuine student. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances. The relevant law permitted cancellation if the visa holder was not a genuine student or engaged in conduct not contemplated by the visa. The Tribunal noted that for notices of intention to cancel sent after March 2010, specific prescribed matters under regulation 2.43 of the Migration Regulations 1994 could be considered.

The Tribunal found that the ground for cancellation existed. It noted that the applicant had transferred to a vocational course after cancelling her higher education enrolment and that her education provider had advised of non-attendance and lack of course progression, leading to the cancellation of her enrolment. The applicant's explanation that her agent advised her she did not need to attend classes was given no weight, as the responsibility for complying with visa conditions rests with the visa holder. The Tribunal also found inconsistencies between the applicant's reported working hours and those provided by her employer, and between her study claims and her provider's records. While acknowledging the applicant's initial intention to study a Bachelor of Business and her compliance with other visa conditions, the Tribunal concluded that the non-compliance with enrolment in a registered course at the appropriate level had occurred over a substantial period.

On balance, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that the cancellation was warranted given the circumstances.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 EVIDENCERelevant law 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? 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. 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 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. On 30 December 2014 the applicant was granted a Subclass 573 Higher Education Sector visa. The applicant arrived in Australia on 11 February 2015. The Provider Registration and International Student Management System (PRISMS) shows the applicant was enrolled in General English, English for Academic Purposes and a Bachelor of Business. She completed the English courses in 2015 and her enrolment in the Bachelor of Business was cancelled on 11 July 2016 when she transferred to another course provider. She enrolled in a Diploma of Remedial Massage in August 2016. This course was in the Vocational, Education and Training Sector. On 29 August 2017 the Department of Immigration and Border Protection (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that she was not and was not likely to be a genuine student. The following information was contained in the NOICC:·On 29 August 2017 the Department attended Health Point Massage, Westfield and located the applicant working in the business. She said she held a student visa and was undertaking a Diploma of Remedial Massage at Malvern International College (MIC) in Melbourne. She said she had been working on a casual basis since April 2017 as part of the practical component of the course.·The information provided by the applicant about her working hours was inconsistent with the information provided by the manager of the business. The information provided by the applicant about her study was inconsistent with the information provided by MIC who said she had not submitted any work since November 2016 and that she had been sent notices of non-course progression. MIC advised that her CoE would be cancelled on 1 September 2017 due to non-attendance/no course progression. MIC advised that all practical course work was conducted on site and that they imposed a mandatory 20 contact hours per week.

Decision

Reasons for decision

The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, 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.Christine KannisMemberATTACHMENT – 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

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 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 applicant completed a General English course in October 2015 and English for Academic Purposes in December 2015. The Tribunal is satisfied that the applicant travelled to Australia with the original intention to study a Bachelor of Business and these courses were undertaken in preparation for that course, and has placed some weight in the applicant’s favour on this factor.The extent of compliance with the visa conditions The applicant was granted a Subclass 573 visa to undertake a course of study, and to achieve a qualification from an Australian educational institution. As a visa holder of a Subclass 573 visa, the applicant was required to comply with all visa conditions including maintaining enrolment in a registered course of study, attending satisfactorily, and progressing satisfactorily. At the date of cancellation the applicant was no longer enrolled in a registered course in the sector appropriate for her student visa. 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 she has not been enrolled in a higher education registered course since 11 July 2016. She was enrolled in a vocational level course from 1 August 2016 until her education provider cancelled her enrolment on 1 September 2017. The education provider advised the Department that the applicant’s enrolment was cancelled due to non-attendance/no course progression. In relation to the applicant’s contention that she was not aware that she had breached her visa conditions because her agent told her she did not need to attend classes, the Tribunal gives this no weight in her favour not to cancel her visa because the responsibility sits with the applicant to ensure she meets the requirements of the visa. In any event the applicant acknowledged that she did not submit course work or undertake any study for several months and sought to rely on the education provider having not notified her of any study requirements. Once again the responsibility sits with the applicant to ensure she meets the requirements of the visa. The Tribunal notes that the non-compliance with enrolment in a registered course at the appropriate level has occurred over a substantial period of time and places weight upon this. The Tribunal has no evidence before it that the applicant has not complied with other visa conditions. It considers that this is a consideration in her favour, and has taken this into account and given it some weight.The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.