Ting (Migration)
[2020] AATA 171
•9 January 2020
Ting (Migration) [2020] AATA 171 (9 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Meng Kwong Ting (‘First Applicant’)
Mrs Hua Xiao (‘Second Applicant’)CASE NUMBER: 1913950
HOME AFFAIRS REFERENCE: BCC2018/6028936
MEMBER:Dr Jason Harkess
DATE:9 January 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the First Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa
The Tribunal has no jurisdiction with respect to the Second Applicant’s application.
Statement made on 09 January 2020 at 3:02pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –lack of enrolment and progress over a substantial period – applicant was not a genuine student – unsatisfactory progress in his studies– poor class attendance record – applicant failed to maintain enrolment in a Diploma-level course – breached condition 8202 – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994 (Cth), r 2.43, Schedule 8
STATEMENT OF DECISION AND REASONS
INTRODUCTION AND OVERVIEW
Student Visa Cancellation – Application for Review
The First Applicant is a citizen of Malaysia and is 42 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 27 May 2019 cancelling his Subclass 500 student visa pursuant to s 116(1) of the Migration Act 1958 (Cth) (‘the Act’).
The Second Applicant is a citizen of China and is the spouse of the First Applicant. Her Subclass 500 student visa was cancelled following the delegate’s decision cancelling the First Applicant’s visa. She seeks review of the cancellation of her visa. However, no ‘decision’ was made in relation to her visa. Her visa was automatically cancelled by the operation of law because she held her visa as a member of the family unit of the First Applicant.[1] Accordingly, there is no reviewable decision before the Tribunal relating to the cancellation of the Second Applicant’s visa.
[1] See Migration Act 1994 (Cth), s 140(1), which provides that, ‘[i]f a person’s visa is cancelled under section … 116 …, a visa held by another person because of being a member of the family unit of the person is also cancelled.’
Original Visa Grant
The First Applicant’s visa was granted on 30 May 2018. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa.[2] In particular, the First Applicant was found to have been ‘a genuine applicant for entry and stay as a student’ in Australia.[3] The First Applicant’s student visa had an original expiry date of 15 March 2020. It provided for more than 21 months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study.
[2] The primary criteria for the grant of student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.
[3] Migration Regulations 1994 (Cth), Sch 2, cl 500.212.
The Second Applicant’s student visa was granted as a consequence of the First Applicant being granted his visa and also because it had been determined that she met the secondary criteria for the grant of a student visa.[4] As the spouse of the First Applicant, her student visa enabled her to remain in Australia for the duration of the First Applicant’s studies. She was not obliged to study herself.
[4] The secondary criteria are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.311 to 500.318.
Reasons for Cancellation
The First Applicant’s visa was cancelled because the delegate had determined that a legal basis for cancellation had been established under s 116 of the Act. Specifically, the delegate had found that the First Applicant ‘is not, or is likely not to be, a genuine student’, being the basis upon which a student visa may be cancelled under s 116(1)(fa)(i) of the Act. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the First Applicant’s visa ought to be cancelled.
The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Tribunal by the Applicants when they lodged their review application on 3 June 2019.
Issues for Determination by Tribunal
The first issue requiring consideration by the Tribunal is whether the ground for cancellation under s 116(1)(fa)(i) of the Act is made out, namely whether the First Applicant ‘is not, or is likely not to be, a genuine student’. If the Tribunal determines that ground for cancellation is made out, the second issue requiring consideration is whether the First Applicant’s visa ought to be cancelled.
Hearing of Application
The Tribunal convened a hearing to consider the merits of the application on 13 August 2019. The First Applicant appeared before the Tribunal in person to give evidence and present arguments. The Second Applicant also attended the hearing but did not give evidence.
The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Tribunal’s Determination
The Tribunal has concluded that the decision to cancel the First Applicant’s visa ought to be affirmed in this case. The Tribunal has no jurisdiction in relation to the Second Applicant’s application.
GROUND FOR CANCELLATION
Applicable Law
Section 116 of the Act provides:
116 Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(fa) in the case of a student visa:(i) its holder is not, or is likely not to be, a genuine student; or
(ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
…
(1A)The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
(2)The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.
(3)If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled
Regulation 2.43 of the Migration Regulations 1994 (Cth) (‘the Regulations’) provides:
2.43 Grounds for cancellation of visa (Act, s 116)
…
(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.
…
The conditions referred to in s 116(2) and (3) do not arise in this case and therefore have no application. As the delegate has only alleged that the First Applicant is not, or is likely not to be, a genuine student, s 116(1)(fa)(ii) also has no application.
Neither the Act nor the Regulations explain what ‘a genuine student’ is for the purposes of s 116(1)(fa)(i). Regulation 2.43(1D) directs the Tribunal’s attention to consider the circumstances of a visa holder’s deferment or temporary suspension from a course of study, if that particular situation has arisen (it has not arisen in this case). However, it does not purport to be an exhaustive statement of the circumstances that may lead to a finding of a visa holder not being a genuine student.
In the absence of a specific statutory or regulatory definition, the word ‘genuine’ may be taken to mean ‘authentic, ‘real’ or ‘true’, according to its ordinary and natural meaning.[5] The Federal Court has suggested that s 116(1)(fa)(i) is directed to circumstances where student visa holders may have been ‘in literal compliance’ with the conditions of their visas, but have otherwise conducted themselves in a manner that falls short of the kind of behaviour expected of a genuine student.[6] That judicial observation appears to derive from the fact that s 116(1)(b) of the Act provides for a separate ground for cancelling a student visa on the basis that the visa holder has not complied with a condition of their visa. There are several conditions that attach to student visas.[7] Condition 8202 obliges the visa holder to remain enrolled in a registered course of study,[8] to make satisfactory course progress in their studies,[9] to attend classes,[10] and to avoid ‘downgrading’ to a lower-level course.[11] These conditions are designed to ensure a student visa holder maintains the behaviours that are to be expected of a non-citizen who has been granted a visa on the basis of their declared intentions of being a genuine student.
[5] See the entry for ‘genuine’ in Oxford English Dictionary (Oxford University Press, 2nd ed, 1989); Macquarie Dictionary (Macquarie Dictionary Publishers, 7th ed, 2017).
[6] Minister of Immigration and Multicultural Affairs v Hou [2002] FCA 574, [32] (Conti J). See also Tian v Minister for Immigration and Multicultural and Indigneous Affairs [2004] FCA 216, [32]; Wang v Minister for Immigration [2018] FCCA 2033, [15].
[7] For applicants who satisfy the primary criteria, conditions which are imposed on all student visas are specified in the Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a). They include Conditions 8105 (paid work limitation), 8202 (maintain enrolment in full-time registered course of study, maintain or increase Australian Qualifications Framework level of enrolment in event of course change, attend classes, achieve satisfactory course progress), 8501 (maintain health insurance), 8516 (continuing obligation to satisfy the primary or secondary criteria of the visa, as the case may be), 8517 (make arrangements for the education of school-age dependants), 8532 (extra requirements for minors) and 8533 (notify education provider of changes of address). Further conditions may also be imposed in appropriate cases under cl 500.611(2). These Conditions are set out in Sch 8 of the Regulations.
[8] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(a).
[9] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(c)(i).
[10] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(c)(ii).
[11] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(b). The Regulations expressly draw upon the Australian Qualifications Framework (‘AQF’) as the measure for categorising the level of complexity of a student visa applicant’s proposed course of study. The AQF is the policy for regulated qualifications in the Australian education system. It creates a hierarchy of levels associated with courses of study registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course and/or the depth of achievement and the autonomy required that successful completion of the course represents. AQF level 1 (Certificate I) has the lowest complexity and AQF level 10 (Doctoral Degree) has the highest complexity. The AQF is administered by the Department of Education and Training. See generally < type="1">
Decisions involving the cancellation of a student visa under s 116(1)(fa), that have been affirmed by the Tribunal, and then upheld by the Federal Circuit Court and Federal Court on review, tend to display a common theme. The visa holder has usually failed to achieve satisfactory course progress, failed to attend classes, or failed to be enrolled in any course at all.[12] These are the kinds of factors that must be considered in a case of cancellation under s 116(1)(fa)(i). The focus of the Tribunal’s inquiry involves considering matters which have occurred subsequent to the visa grant and which appear to disclose behaviour that is inconsistent with the visa holder’s originally declared intentions of wanting to undertake a proposed course of study in Australia. Such behaviour, once identified, may be relevant to the question of whether a visa holder has not complied with a visa condition for the purposes of s 116(1)(b). However, establishing non-compliance with a visa condition is not a necessary requirement for establishing the ground under s 116(1)(fa). The question of whether a visa holder is not, or is likely not to be, a genuine student requires a qualitative assessment of the visa holder’s conduct as a whole.
[12] See, for example, Gunawan v Minister for Immigration [2019] FCCA 2445 (Judge Dowdy), where the student visa holder had not studied for 18 months and had not been enrolled for 12 months; Hannadige v Minister for Immigration [2019] FCCA 406 (Judge Riley), where the student visa holder had failed to make satisfactory progress in courses in which he had been enrolled and had not been enrolled in any course for a 10-month period; Wang v Minister for Immigration [2018] FCCA 2033, where the student visa holder had been in Australia for more than 16 months without being enrolled in a registered course of study and had not maintained their original study plan; Gill v Minister for Immigration and Border Protection [2018] FCCA 569 (Judge Barnes), where the student visa holder had not been enrolled for a seven-month period, had a poor class attendance record, and had failed to complete courses in a higher education level course for which the visa had been granted; Humayun v Minister for Immigration and Border Protection [2017] FCA 1484 (Bromberg J), where the student visa holder had not progressed with their course work satisfactorily and had not successfully completed any course since the student visa was granted; Kaur v Minister for Immigration and Border Protection [2016] FCCA 3161 (Judge Harland), where the student visa holder had not attended classes or lodged any assignments for an 11-month continuous period.
Is the First Applicant not, or likely not to be, a genuine student?
Delegate’s Allegations and Findings
The case against the First Applicant is set out in the delegate’s decision record. The delegate concluded that the First Applicant is not, or is likely not to be, a genuine student on the basis of the following findings:
(a) The First Applicant’s original study plan, which resulted in the grant of his student visa, was to undertake the following registered courses of study at Dalton College:
(i) a Certificate IV in Marketing and Communication (commencing 9 April 2018 and ending 7 October 2018);
(ii) followed by a Diploma of Marketing and Communication (commencing 5 November 2018 and ending 3 November 2019).
(b) On 31 August 2018 the First Applicant’s enrolment in the Certificate IV in Marketing and Communication course was cancelled by Dalton College on the basis that the First Applicant had changed courses and because the course was ‘difficult for the [First Applicant] to study’. As a result of the First Applicant’s enrolment being cancelled in the Certificate IV in Marketing and Communication course, his enrolment in the Diploma of Marketing and Communication course was also cancelled on 7 September 2018.
(c) On 7 September 2018 the First Applicant then enrolled in the following courses at Dalton College:
(i) General English II;
(ii) followed by English for Academic Purposes I;
(iii) followed by English for Academic Purposes II;
(iv) followed by a Certificate IV in Marketing and Communication;
(v) followed by Diploma of Marketing and Communication.
(d)The First Applicant commenced the General English II course on 26 November 2018. However, this enrolment was cancelled by Dalton College on 14 February 2019 due to ‘unsatisfactory attendance’ by the First Applicant. His enrolments in the four courses that were to follow, referred to in sub-paragraph (c)(ii) to (v) above, were also consequently cancelled on 14 February 2019.
(e)Dalton College had counselled the First Applicant in writing in relation to the need for the First Applicant to maintain satisfactory progress and class attendance in relation to his studies. The college sent several warning letters to the First Applicant, including letters dated 6 August 2018 (warning of unsatisfactory progress), 21 September 2018 and 5 October 2018 (warnings of unsatisfactory attendance in General English I course), 17 December 2018 and 7 January 2019 (warnings of overdue fees for General English II course), 17 January 2019 (notification that Dalton College had recorded that the First Applicant had breached his obligation to maintain satisfactory attendance for General English II course).
(f)The First Applicant left Dalton College having only successfully completed an 11-week General English I course, and only three units in the Certificate IV in Marketing and Communication course, since his student visa had been granted on 30 May 2018.
(g)On 28 February 2019 the First Applicant enrolled in a Certificate IV in Accounting and Bookkeeping course at Sydney Metro College (commencing 18 March 2019 and ending 15 March 2020).
The delegate’s findings were made on the basis of information obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’),[13] as well as correspondence the delegate received from Dalton College. As a result of these findings, the delegate concluded that the First Applicant’s ‘lack of enrolment and progress over a substantial period of time, whilst nonetheless choosing to remain in Australia on a visa solely existing for his engagement in study, indicates that he is not a genuine student.’
First Applicant’s Response to Allegations
[13] The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth). It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. See, generally, Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].
Prior to cancelling his visa, the Department of Home Affairs (‘the Department’) wrote to the First Applicant by letter dated 19 March 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). The NOICC set out particulars of the matters that have been summarised above and put the First Applicant on notice that the Department was concerned that he may not be a genuine student for the purposes of s 116(1)(fa)(i). The First Applicant was invited to comment before the Department determined whether his visa should be cancelled.
The First Applicant responded to the NOICC in writing on 25 March 2019 (‘NOICC response’). In his NOICC response, the First Applicant stated the following (grammatical and expressional errors reproduced verbatim):
I enrolled in Certificate IV in Marketing and Communication course with Dalton College in February 2018. Then I completed three units in the following few months with satisfactory attendance.
However, from June to August, Dalton College changed the course trainers twice. I need to adapt to their different styles of teaching methods and course progress. In August 2018, the trainer Shaher Shaik informed me that most of my assignment did not reach the requirement. Later on, the admission staff advised me to study English courses instead of current Cert IV in Marketing and Communication course to improve my English level so that I was qualified to review the Marketing courses or fulfil the entry level of Cert IV course of study. Therefore, I changed my study plan with no choice, and at the beginning of September 2018, I received several COEs about my new English courses and Marketing courses.
On 21/09/2018, I received the first warning letter about attendance from Dalton College. Since the General English course attendance requires around three days per week which different from VET course, I need rearrange my timetable. Moreover, I travelled back to Malaysia from 16th to 22 September for short stay. When I came back to Melbourne I contacted the admin staff to explain my situation and then attended the class following the timetable.
When I studied in General English II, the timetable is changed, from Tuesday to Thursday. After discussing with the student supporting staff, I changed to weekend class timetable. Also, I made my efforts to complete the assignment and meet the requirement of the General English course.’
In February 2019, I received an email from Dalton College and five COE cancellation records. I applied Certificate IV in Accounting and Bookkeeping in Sydney Metro College Melbourne campus and enrolled on 18/03/2019.
Visa should not be cancelled
I am a genuine student according to my academic progress since the previous student visa was granted in Australia.
Dalton College tried to keep me in school and changed my course to English course without any explanation and excuses. If I were qualified to study Cert IV and Diploma course, how did I completed a Diploma of Business and Advanced Diploma of Business in Dalton College during my second student visa? To be a standard registered education provider, should not necessarily change my course without student’s permission to ask me to remain in Dalton College as long as possible.
After I completed General English I, I tried to back to Cert IV in Marketing and Communication course. Unfortunately, school admission did not allow me to do so. That was the main reason; I decided to apply for school transfer due to Dalton College was supposed not the qualified registered education provider.
Because I have decided to do school transfer, and also on the way to apply a new offer letter which resulted in attendance failed to comply with a visa requirement.
It appears I try to comply with visa conditions, during school transfer period which might come under compassionate and compelling circumstances.
The First Applicant attached supporting documents to his NOICC response, which included previous qualifications he had obtained while studying in Australia on previous student visas.
It is apparent from the First Applicant’s NOICC response that he did not seek to dispute the delegate’s allegations about the extent to which he had failed to progress with his original study plan and the enrolment cancellations and changes that had been made since his visa was granted on 30 May 2018. Rather, the First Applicant sought to challenge the conduct of teaching and administrative staff at Dalton College by suggesting that administrative processes and decisions at the college had been made contrary to his wishes, leading to the situation in which he finds himself now. It is clear from his NOICC response that he maintains the view that he is a genuine student.
The evidence of the First Applicant at the hearing before the Tribunal on 13 August 2019 was generally consistent with the claims that he had made in his NOICC response. In his oral evidence, the First Applicant admitted that he had achieved very little by way of academic achievement since his student visa was granted on 30 May 2018. He said that he had studied for four months following the visa grant and that is all. While he admitted that he had a poor class attendance record, he reiterated his concerns about happenings at Dalton College. He expressed concerns about teaching staff changes and teachers unjustifiably expressing dissatisfaction with his submitted assignments. He was not satisfied with decisions that had been made by staff that resulted in him having to change his original study plan and undertake further English courses. He felt that he did not need to do any further English courses. In particular, he did not wish to do the General English II course because he thought it was too easy for him. He said that he made requests to start the Certificate IV in Marketing course and had requested Dalton College to transfer him to another college but staff at Dalton College did not give effect to these requests. The First Applicant did not dispute that he had received all the warning letters from Dalton College as set out in the delegate’s decision record.
The First Applicant also gave evidence about certain events transpiring in 2018 and 2019 that, according to him, had impacted on his ability to study. He said that both he and the Second Applicant had been working, on a part-time basis, as fruit pickers in Leeton, New South Wales. While the evidence of the First Applicant was not always clear, it seems that the Second Applicant had been working for the same employer as a fruit picker since the Applicants first arrived in Australia in 2015. The First Applicant stated that, from 2015 to 2018, he studied full-time while the Second Applicant was the main ‘breadwinner’ in terms of income generated from working in Australia. While the Second Applicant worked in Leeton, the First Applicant studied in Melbourne. This meant that they were living apart. It appears from the First Applicant’s own evidence that he also began to work as a fruit-picker in 2018 for up to 18 hours per week. However, it was at this point that issues appear to have arisen with the employer.
According to the First Applicant, the Applicants’ employer was a labour-hiring agency that had contracts with farmers in the Leeton area for the supply of fruit-pickers. There were two people who owned this labour-hiring business to whom the Applicants were answerable in relation to their work. As employees of the labour-hiring agency, the Applicants did not have a direct contractual relationship with the farmer for whom they were effectively working. The farm would pay the labour-hiring agency which would, in turn, pay the Applicants.
It appears that at some point in 2018, the Applicants approached the farmer they were working for to negotiate directly with the farmer for working contracts. They succeeded in entering into such contracts. These contracts effectively undermined certain contracts that the labour-hiring agency had with the farmer. Understandably, this turn of events appears to have caused the owners of the labour-hiring agency some degree of consternation. According to the First Applicant, the two owners of the agency began to ‘hassle’ and ‘threaten’ both Applicants. This behaviour escalated and came to a head in 2019 when they began making serious threats against the Applicants that resulted in the Applicants fearing for their safety. The Applicants complained to New South Wales Police who, upon investigation, obtained Apprehended Violence Orders against the two owners of the labour-hiring agency. The First Applicant produced relevant summaries of the allegations against the labour-hiring agency owners, prepared by the New South Wales Police, and court orders dated 2 July 2019 prohibiting the Applicants’ former employers from assaulting, threatening, stalking, harassing or intimidating them. The summary of allegations that led to the granting of the orders indicates that the former employers began engaging in the threatening behaviour against the Applicants in early 2019.
In oral evidence, the First Applicant said that he wished to remain in Australia to continue with his studies. He said that he was a genuine student and drew to the Tribunal’s attention his successful history of studying in Australia. In that regard, the First Applicant disclosed that his student visa which was cancelled by the delegate was his third successive Australian student visa. As noted above, he has been in Australia since 2015. During that time he has successfully completed a 46-week General English course at Bayside International English College (from 15 February 2015 to 29 January 2016), a Diploma of Business at Dalton College (issued 9 December 2016) and an Advanced Diploma of Business at Dalton College (issued 19 January 2018). The Tribunal has sighted copies of these qualifications and accepts the evidence of the First Applicant in this regard. The First Applicant argued that these successes in the past demonstrate that he is a good student and that they also demonstrate that he is a genuine student visa holder now.
Analysis and Assessment
While the Tribunal is of the view that the First Applicant has gone to considerable effort in explaining the situation with respect to his studies at Dalton College, throughout 2018 and in the early months of 2019, ultimately the Tribunal is not satisfied with his explanation leading to the deterioration of his study progress. Compared to his earlier academic achievements for the period 2015 to 2017, the years of 2018 and 2019 represent a significant deterioration in the First Applicant’s behaviour as a student.
The First Applicant has now been in Australia, purportedly as a genuine student engaged in full-time study, for almost five years. From 2015 to 2017, it is evident that the First Applicant was well aware of what was required of him to remain a genuine and successful student. His genuine commitment to his studies in those earlier years is clearly demonstrated by the attainment of the Diploma and Advanced Diploma qualifications in business studies.
Thereafter, it appears very little has been achieved. As the delegate’s decision record notes, in 2018 he only successfully completed another English course. He has attempted to attribute the failure in his course progress, since completing that English course, to staff at Dalton College. The Tribunal does not accept his claims in this respect. From the evidence set out in the delegate’s decision record, it is clear that Dalton College warned the First Applicant about issues that were becoming apparent with his obligations as a student. Dalton College afforded him ample opportunity to remedy the situation. The First Applicant’s criticisms of the college are, in the Tribunal’s view, entirely unjustified.
The more likely explanation for the First Applicant’s lack of academic performance in 2018 is that the First Applicant de-prioritised his studies in favour of work opportunities that had presented themselves in Leeton. The Tribunal accepts the evidence of the First Applicant that considerable problems arose with his former employer which necessitated the obtaining of Apprehended Violence Orders from a New South Wales court. The Tribunal has no doubt that these events caused both Applicants considerable stress. However, the situation with his former employer serves to highlight the fact that in 2018 the First Applicant had made a conscious decision to focus on working in Australia rather than on studying. His studies at Dalton College inevitably deteriorated because he had ceased being a genuine student.
The Tribunal has considered the possibility that the First Applicant has since restored himself to ‘genuine student’ status following the termination of his studies at Dalton College. The Tribunal does not consider that the First Applicant’s transfer to a Certificate IV in Accounting and Bookkeeping course demonstrates that he is a genuine student. As the delegate noted, the First Applicant has effectively downgraded his original study plan by not maintaining enrolment in a Diploma-level course. The Tribunal is also not convinced that a Certificate IV in Accounting and Bookkeeping will add significant value to the First Applicant’s employment prospects, given that he has already obtained Diploma and Advanced Diploma-level qualifications in business from Dalton College.
Conclusion
The Tribunal finds that the First Applicant is likely not to be a genuine student.
CONSIDERATION OF DISCRETION TO CANCEL VISA
Having found that the First Applicant is likely not to be a genuine student for the purposes of s 116(1)(fa)(i) of the Act, the Tribunal must now consider whether his student visa ought to be cancelled.
Relevant Factors
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The matters that ought to be considered are specifically listed in PAM3 as follows:
(a) the purpose of the First Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;
(b) the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the First Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);
(c) the extent of the First Applicant’s compliance with visa conditions, including an assessment as to the extent to which the First Applicant has otherwise complied with visa conditions, both now and on previous occasions;
(d) the degree of hardship that may be caused to the First Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;
(e) the First Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);
(f) whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;
(g) whether there are mandatory legal consequences arising from a decision to cancel the visa;
(h) whether Australia has obligations under any relevant international agreements that would be breached as a result.
Purpose of First Applicant’s Stay in Australia
The purpose of the First Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis. Regrettably, that purpose has effectively been defeated as a result of the First Applicant’s de-prioritisation of his studies. His student visa was granted on the basis that he was found to be a genuine student. In this case, the ground of cancellation has been made out on the basis that he has been found likely not to be a genuine student. The established ground for cancellation directly and fundamentally undermines the purpose of his stay. This is a significant factor that weighs in favour of cancelling the First Applicant’s visa.
By their nature, student visas are temporary, permitting non-citizens only a temporary stay in Australia. As such, there is no compelling need for the First Applicant to remain in Australia, especially in circumstances where the Tribunal is not satisfied that he is a genuine student. This also weighs in favour of visa cancellation.
Circumstances Giving Rise to Ground for Cancellation
The circumstances giving rise to the ground for cancellation have been set out above. The Tribunal finds that the deterioration of the First Applicant’s studies, leading to the finding that he is likely not to be a genuine student, is largely a result of the First Applicant’s own decision-making processes. He had the ability to maintain satisfactory study habits, but it seems that he chose not to do so. At all material times, such matters were within his control.
The Tribunal does not consider the situation that arose with respect of his former employer as amounting to ‘extenuating circumstances’ in this case.
Accordingly, the circumstances giving rise to the ground for cancellation do not weigh in the First Applicant’s favour.
Extent of First Applicant’s Compliance with Visa Conditions
The First Applicant’s conduct that has led to the Tribunal finding that he is likely not to be a genuine student also suggests that he has not been in compliance with Condition 8202 with respect to his obligations to maintain satisfactory class attendance and course progress. As the delegate also noted, his failure to maintain enrolment in a Diploma-level qualification also effectively amounted to a breach of Condition 8202.
While it is unnecessary for the Tribunal to make formal findings in relation to these apparent breaches, the relevant conduct in this respect weighs in favour of cancelling the First Applicant’s visa.
Hardship
The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and study in order to obtain an Australian qualification. The Tribunal accepts that it would be disappointing for him were he not allowed to complete successfully a further Australian qualification. However, he has already successfully obtained a Diploma and Advanced Diploma in Business while studying in Australia. As he is proposing now to do only a Certificate IV-level qualification, the Tribunal gives this little weight in the First Applicant’s favour having regard to the value that this proposed qualification represents.
Having his visa cancelled, and being forced to leave Australia, will have some psychological impact and cause inconvenience to the First Applicant. The Tribunal has given this consideration some weight in favour of not cancelling the First Applicant’s visa.
First Applicant’s Behaviour towards Department
The Tribunal has given consideration to the First Applicant’s past and present behaviour towards the Department of Home Affairs. There is nothing unfavourable before the Tribunal in that regard. At all material times he has been co-operative in communicating with the Department and moving towards the resolution of this matter that concerns the cancellation of his visa.
Other Visa Holders
The Tribunal has taken into account that the Second Applicant’s student visa would be cancelled automatically under s 140 of the Act following the cancellation of the First Applicant’s visa. However, the Tribunal notes that the Second Applicant’s stay in Australia has always been contingent on the legitimacy of the First Applicant’s stay in Australia. The cancellation of her visa is an unfortunate, yet necessary incident of the legal effect of s 140 of the Act.
Legal Consequences
The Tribunal notes that if their visas are cancelled, the Applicants will become unlawful non-citizens and liable to detention under s 189 and removal under s 198 of the Act if they do not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting their options to apply for further visas from within Australia. They will also be subject to a three-year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds.
The Tribunal notes that the Applicants may be eligible to apply for bridging visas to allow them to make arrangements to depart Australia. They are citizens of Malaysia and China, respectively, and hold current passports for those countries. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicants do not co-operate with authorities in giving effect to their departure from Australia.
International Obligations
The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.
Conclusion
In all the circumstances, the Tribunal is of view that the First Applicant’s visa ought to be cancelled.
DECISION
The Tribunal affirms the decision to cancel the First Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.
The Tribunal has no jurisdiction with respect to the Second Applicant’s application.
Dr Jason Harkess
Member
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