Thi Khanh Le (Migration)

[2018] AATA 1197

Thi Khanh Le (Migration) [2018] AATA 1197 (9 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Khanh Le

CASE NUMBER:  1621765

DIBP REFERENCE(S):  BCC2016/3310072

MEMBER:Christine Kannis

DATE:9 March 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 09 March 2018 at 8:34am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the applicant is a “genuine student” – Lack of academic progress – Courses undertaken at a lower level of study – Grounds for cancellation exist – Consideration of discretion to cancel – No significant considerations weighing against cancellation

LEGISLATION
Migration Act 1958, s 116(1)(fa)(i)
Migration Regulations 1994, r 2.43(1C)-(1D)

CASES
MIMA v Hou [2002] FCA 574
Shrestha v MIMA (2001) ALD 669

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 December 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 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 20 February 2018 to give evidence and present arguments.  

5. The applicant was represented in relation to the review by her registered migration agent.

6. The Tribunal was assisted by an interpreter in the Vietnamese and English languages.

7. 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

8. 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?

9. 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.

10. The proper construction of s.116(1)(fa)(i) was discussed in Shrestha v MIMA (2001) ALD 669, in which the Court held that in introducing s.116(1)(fa)(i), it was not Parliament’s intention that a genuine student who had failed in attendance and/or academic performance due to ‘innocent temporary mishap’ or ‘transient misadventure’ should face cancellation (per Madgwick J at [19]). 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]).

11. 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.

12. On 10 October 2014 the applicant was granted a visa in Subclass 573 Higher Education Sector. The applicant arrived in Australia on 18 October 2014.

13. The Provider Registration and International Student Management System (PRISMS) shows the applicant was enrolled in an Academic English Program, a Diploma of Business and a Bachelor of Business. She completed the Academic English Program on 18 September 2015 however she failed the course.

14. The PRISMS indicates that her enrolment in the Diploma of Business was cancelled on 26 October 2015 and her enrolment in the Bachelor of Business was cancelled on 27 November 2015. The reason for cancellation in both cases was indicated to be due to non-commencement of studies.

15. On 19 September 2016 the applicant enrolled in Certificates I, II and III in Spoken and Written English and a Diploma of Business. The applicant’s enrolment in all these courses has since been cancelled.

16. The PRISMS show the applicant has not successfully completed a course of study at a Higher Education Sector level.

17. The applicant was not enrolled in a course of study from 27 November 2015 until 19 September 2016, a period of more than nine months.

18. On 6 December 2016 the Department of Immigration and Border Protection (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because it was considered that she was not and was not likely to be a genuine student.

19. On 12 December 2016 the applicant responded to the NOICC and advised the following:

    ·She studied the Academic English Program course for approximately one year until September 2015 however she was unable to pass the course.

    ·She obtained assistance from a migration agent who helped her enrol in Certificates I, II and III in Spoken and Written English at Stanley College. The migration agent told her she would need to wait for ten months for her course to start and he did not realise she would also need to obtain a Confirmation of Enrolment (CoE) for a Bachelor course.

    ·She studied for three months from June 2016 to September 2016 however Stanley College revised her Letter of Offer and she was required to re-commence study in the Certificates in Spoken and Written English from 19 September 2016.

    ·She relied on her migration agent and was unaware of the importance of obtaining a CoE in a Higher Education Sector. She did everything as advised by her migration agent.

    ·As soon as she received the NOICC she tried to correct the situation.

    ·She had “taken admission” for a Bachelor degree with ASM to help her gain a better understanding of Business Management and help her pursue her dreams.

20. Prior to the hearing the applicant provided two written submissions and evidence of the contact she had with her former migration agent. The information provided in the written submissions was not materially different to the information provided in her response to the NOICC.  The Tribunal noted that nearly all of the evidence of the contact with her former migration agent was not in the English and a certified translation was not provided.

21. The applicant told the Tribunal that she came to Australia to study. She did not achieve well academically in Vietnam and she wanted to come to Australia to change her life. She said the role of a woman in Vietnam is one of being dependent and she wanted to be independent. The applicant and her mother decided the applicant should learn another culture and together they decided she should come to Australia.

22. The applicant said she wanted to learn both the practical and theoretical aspects of Business studies with a view to opening a clothes shop in Vietnam one day. She said Business studies would help her understand the market and run her business.

23. The applicant told the Tribunal that she studied English for one year in Australia but she found the course too difficult and so she decided to change education providers. In November 2015 she secured the services of a migration agent in Melbourne who arranged for her to sit the admission test for Cambridge College however the College would not allow her to enrol. The applicant’s evidence regarding the reason for this was unclear but the Tribunal considers it may have been because she had not been given a release letter by her previous education provider.

24. The applicant said she commenced study in a Certificate I in Spoken & Written English course at Stanley College in June 2016 but Stanley College did not issue a CoE until September 2016. She continued to study at Stanley College until cancellation of her visa in December 2016. The Tribunal accepts that the applicant commenced studying in June 2016.

25. The Tribunal noted that her enrolment at Stanley College were package courses leading to a Diploma course, a course in the Vocational Education and Training Sector. The applicant said she was aware that this study was not study for which her visa had been granted and said she hoped to study at a lower level and eventually reach a higher level of study.

26. The applicant sought at several times during the hearing to rely on the poor assistance provided by her former migration agent and on one occasion by a lady who helped her with paperwork. The Tribunal asked the applicant whether she contacted the Department at any time for advice or guidance. She said she did not contact the Department because she did not understand the laws. 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.

27. The applicant has not been studying since December 2016. She resides with her partner and her partner and her friends have financially supported her. Her mother also sends her small amounts of money.

28. The applicant told the Tribunal that when she received the NOICC she contacted a new migration agent for assistance. She sat an admission test with the Australian School of Management and said she would have been accepted to undertake a Bachelor degree however her visa was cancelled before a CoE could be issued.

29. The Tribunal asked the applicant the reason for her providing the evidence of contact with her former migration agent. She said the evidence demonstrated that she made multiple contacts with her former migration agent. As most of the contacts were not in English, the Tribunal placed no weight on this evidence and informed the applicant accordingly.

30. Regarding the potential hardship which may result from cancellation of the visa, the applicant said that if she has to depart Australia without a Business qualification she would not have had the chance to acquire the knowledge and experience which would assist her to run her business. She also said she would like to use any business knowledge acquired to help her mother in her food business.

31. The Tribunal places weight on the fact that since her arrival in Australia the applicant has not successfully completed any course.  The Tribunal considers the fact that the applicant has not successfully completed any course in Australia, even an English course, is strong evidence that she is not a genuine student. 

32. The applicant has not been enrolled in a Higher Education Sector course since 27 November 2015. She found the course too difficult and more than nine months later she enrolled in a lower level course and was aware that this course was not at the course level for which she was granted a student visa. Whilst the applicant’s lack of enrolment in any registered course for more than nine months, even at a lower level, is not determinative in itself, it is adverse to her claim that she is a genuine student.

33. The applicant’s evidence regarding the reason for not studying from September 2015 to June 2016 was unsatisfactory. She said she had difficulty finding a migration agent in Perth. In November 2015 she secured the services of a migration agent in Melbourne and they communicated by email and by phone. The migration agent assisted her in trying to enrol at Cambridge College but because of her previous education provider she could not be enrolled. She was subsequently able to enrol at Stanley College in September 2016.

34. Having regard to the applicant’s enrolment history, the Tribunal finds that the applicant is not a genuine student.

35. 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 the discretion to cancel the visa

36. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, in considering whether the visa should be cancelled the Tribunal has had regard government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

37. The applicant was granted a student visa Subclass 573 to undertake a course of study and to achieve a qualification from an Australian educational institution. As a visa holder of a Subclass 573, the applicant is required to comply with all visa conditions including maintaining enrolment in a registered course of study, attending satisfactorily, and progressing satisfactorily.

38. At the date of cancellation the applicant was no longer enrolled in a registered course in the sector which was the basis of 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 failed the only course she completed and has not been enrolled in a higher education CRICOS registered course since  27 November 2015.

39. The applicant did not study from the time she finished the Academic English Program course in September 2015 until June 2016, which is a significant period of time. The study she undertook from June 2016 until December 2016 was not in a course level required for her visa and as such the Tribunal gives this no weight in not cancelling the visa.

40. In relation to the applicant’s contention that she was not properly assisted by her former migration agent, the Tribunal gives this no weight in her favour not to cancel her visa because whilst it is plausible that she received poor assistance, the responsibility sits with the applicant to ensure she meets the requirements of the visa.

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

42. 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.

43. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in her favour and it has taken this into account.

44. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to her immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion.

45. There are no persons in Australia whose visas would, or may, be cancelled under s140. 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.

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

47. 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

48. 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.