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

1. 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).

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. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. 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.

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. 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.

10. On 30 December 2014 the applicant was granted a Subclass 573 Higher Education Sector visa. The applicant arrived in Australia on 11 February 2015.

11. 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.

12. 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.

13. On 30 August 2017 the applicant attended an interview with the Department during which she responded to the NOICC and provided the following information:

    ·She came to Australia as a student and successfully completed her English courses but struggled with her Business studies because she could not understand English.

    ·She was previously studying at Murdoch University but she changed course because it was too difficult. She wanted to change to a TAFE course and complete an easier course. She expressed interest in Business and Nursing.

    ·Her parents gave her a large sum of money to come to Australia for her education and she could not return to China and tell her parents she has no qualification.

    ·She was untruthful when she was located at Health Point Massage on 29 August 2017 because she was scared.

    ·She had worked at Health Point Massage, Westfield since October 2016.

    ·She had never attended MIC.

    ·She paid the tuition fees for her diploma course without any intention of attending the course because she could not return home without a diploma.

    ·She did not know she had problem because her agent told her she didn’t have to go to school.

14. The Tribunal had regard to an undated letter from the applicant in which she provided the following information:

    ·She was scared and frustrated when her visa was cancelled especially because of her parents’ expectation and economic investment which will be rewarded with nothing. Her parents will be disappointed and she blames herself for not cherishing the chance to study hard.

    ·She was previously studying at Murdoch University and completed her English bridging courses. Since she transferred to a vocational college which didn’t have a good learning atmosphere she was lost and attracted to earning money to release the financial burden for her parents.

    ·She was previously a hard working student.

    ·She can’t give up in the middle of the course with nothing achieved.

    ·Her parents saved up to support her study in Australia and they don’t pay attention to their living quality and spend all their money on her education. They only expect her to complete her study and find a decent job with an Australian qualification.

    ·She is eager to return to study and will fully concentrate on study if she is given another chance.

    ·She had no idea that she was not allowed to study a vocational course with her Subclass 573 visa. She changed her course from university to a vocational college because she wanted to choose a more practical and work-oriented course.

    ·She did not know she was breaching her visa conditions.

15. The applicant told the Tribunal that her migration agent had provided her with wrong guidance and wrong information. When she wanted to change her study to a simpler course her agent told her she could only undertake study at the level for which her visa had been granted, that of higher education study.

16. The applicant said she had completed a Hospitality management course in China and came to Australia to gain a Hospitality qualification that would enable her to obtain a better job in China. She told the Tribunal that in addition to the English courses undertaken in Australia, she was also enrolled in a Hotel Management course. She was unable to provide a CoE for the course and PRISMS does not indicate that she has been enrolled in a Hospitality related course.

17. Noting that the information before the Tribunal indicated that the applicant had not attended classes at MIC, the Tribunal asked her the basis on which she believed she was a student when she was working at Health Point Massage. She said she commenced that employment in August 2016 during the school term break. Initially she told the Tribunal that she believed she was a student because she was submitting course work. The Tribunal noted that MIC had advised that cancellation of her CoE was due to non-attendance/no course progression. When this was put to her she said that she thought she had to submit coursework but she had not done so because she had not received any reminder emails from MIC in relation to course work.

18. The Tribunal pointed out that at the time she was located at Health Point Massage she had not attended classes or undertaken any study for several months. She said she had been a bit careless and made wrong decisions. She said she paid her tuition fees for a Diploma of Remedial Massage at MIC but did not undertake any study because she was looking for a short cut to gain a qualification.

19. The Tribunal put to the applicant that when she was located at Health Point Massage she attempted to rely on her work as being the basis of her study and said it was a practical component of her course. The Tribunal pointed out that this demonstrated that she was aware that she was required to undertake study as a condition of her visa. She said she was scared and so she lied.

20. The Tribunal asked the applicant about her intentions regarding future study. She said she wants a year or two in Australia to complete a simpler course and gain a certificate or qualification. When asked about the simpler course she wishes to pursue she said she was not sure she could complete a university level course and therefore she wants to undertake diploma level study.

21. The Tribunal asked the applicant whether she had made enquiries about any particular diploma courses. She said she hadn’t made any enquiries because of the uncertainty of her visa status and said if she is allowed to stay in Australia she will give some thought to choices about the school she will attend and course she will undertake. She said she would consider courses recommended by an agent.

22. The Tribunal noted that the applicant’s stated study interest of Hospitality is different to the Massage course in which she was enrolled at the date of cancellation of her visa. The Tribunal asked her the reason for changing her area of study interest. She said her agent told to enrol in the Massage course because it didn’t need much brain work.  

23. The applicant told the Tribunal she tried to engage an agent to assist her to change her visa class from Subclass 573 to Subclass 572 but she was advised that her visa would be cancelled.

24. The applicant sought at several times during the hearing to rely on the fact that she had received poor advice from an agent.  The Tribunal informed the applicant that it was her responsibility to ensure that she complied with the conditions of her visa including that she remained enrolled in a registered course at the appropriate level for the purposes of her visa.

25. The Tribunal places weight on the fact that since her arrival in Australia the applicant has only completed two English courses and has not completed a course in any other area of study.  The Tribunal considers the fact that the applicant has not successfully completed any other course in Australia is strong evidence that she is not a genuine student. 

26. The applicant has not been enrolled in a Higher Education Sector course since July 2016. She found the course too difficult and so she enrolled in a lower level course which was not   at the course level for which she was granted a student visa. Further, she paid the tuition fees but did not attend classes or submit any coursework for several months and was located working at Health Point Massage. In the Tribunal’s view the evidence supports a finding that the applicant did not intend to study after cancellation of her enrolment in a Bachelor of Business on 11 July 2016. The applicant conceded that she was looking for a short cut to gain a qualification and the Tribunal decided she wanted a certificate without undertaking study.

27. Having regard to the applicant’s enrolment history and her employment at Health Point Massage, the Tribunal finds that the applicant is not a genuine student.  The Tribunal accepts that the applicant was enrolled in a course, albeit in a course at a lower level than for which her visa was granted, but decided she had not conducted herself as a genuine student in relation to attendance at class, undertaking study or submitting any coursework. The Tribunal decided that after cancellation of her enrolment in a Bachelor of Business on 11 July 2016, the applicant was not a genuine student.

28. The Tribunal has also taken into account that the applicant has not made any enquiries regarding future study and was not able to provide information about the course she wishes to undertake if she is allowed to remain in Australia.

29. 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

30. 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

31. 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

32. 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.

33. 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.  

34. 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.

35. 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.

36. The Tribunal has had regard to the evidence from the applicant that she experienced difficulties in relation to higher education study and her contention that she received incorrect advice from her agent.  In relation to the difficulties the applicant claims she experienced with the agent, the Tribunal finds that while the applicant may have feelings of disappointment in this regard, it was her responsibility to be cognisant of the conditions of her visa, and ensure she complied with them. Accordingly, the Tribunal places only very limited weight on this matter.

37. The Tribunal has taken into account that the applicant was working at Health Point Massage and was not studying for several months before cancellation of her visa and has given this some weight in favour of cancellation.

38. There was no evidence to indicate that the ground for cancellation arose due to extenuating circumstances beyond the applicant’s control.

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of the cancellation decision.

39. Regarding the potential hardship which may result from cancellation of the visa, the applicant said that she has been in Australia for four years and has not completed any study. She said her family won’t be able to accept her returning to China without a qualification because she would not be able to obtain a job better than she could have obtained prior to leaving for Australia.

40. The Tribunal acknowledges that the cancellation of the applicant’s visa will be disappointing to the applicant and her family.  However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

    The visa holder’s past and present behaviour towards the department (for example, whether a person has been truthful in statements or cooperative in their dealings with the Department).

41. The Tribunal considered the applicant’s past and present behaviour towards the Department and noted her admission during the interview on 30 August 2017 and at hearing that she had provided misleading information on 29 August 2017 because she was scared. The Tribunal noted that during the interview on 30 August 2017 the applicant was recorded as being forthcoming and answering all questions in detail. The Tribunal gives this factor only limited weight in her favour and finds it does not outweigh other factors that point to the cancellation of the visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

1. There are no persons in Australia whose visas would, or may, be cancelled under s140 and  the Tribunal finds that this factor is not relevant.

   Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

2. 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.

   The impact of cancellation on any victim of family violence, or if family violence is a factor.

3. The applicant did not raise any matters that indicated that family violence is an issue, and therefore the Tribunal finds this factor is not relevant.

   Whether there are mandatory legal consequences to a cancellation decision.

4. The cancellation of the visa would mean that the applicant is an unlawful noncitizen, and liable to be detained and removed. However the Tribunal does not consider that this factor outweighs other factors that point to the cancellation of the visa. The Tribunal has also taken into account the fact that the applicant would face being subject to PIC 4013 and a three-year exclusion period on temporary visas, but the Tribunal gives this factor only limited weight in her favour and finds it does not outweigh other factors that point to the cancellation of the visa.

   Any other relevant matters

5. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

6. 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

7. 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.