WAN (Migration)

[2019] AATA 6077

WAN (Migration) [2019] AATA 6077 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Li Wei WAN

CASE NUMBER:  1712534

HOME AFFAIRS REFERENCE(S):          BCC2017/1251079

MEMBER:Melissa McAdam

DATE:18 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 18 December 2019 at 5:03pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – non-genuine student – poor academic progress – significantly changed educational pathways – unsatisfactory attendance – consideration of discretion – three-year exclusion period – 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 2 June 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 under s.116(1)(fa)(i) on the basis that he was satisfied the applicant is not, or is likely not to be, a genuine student. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   NOICC

3. On 17 May 2017 the delegate sent the applicant a Notice of intention to consider cancellation of the applicant’s Student visa under s.116 of the Migration Act 1958 (the NOICC).

4. In the NOICC the delegate set out the following information:

   On 04 June 2013 the applicant was granted a TU-573 Higher Education Sector visa on the
   basis of having an enrolment in a package course consisting of the following courses:

   ·English Language programs (Beginner to Advanced) (1 to 50 weeks)[060789E]

   ·University Foundation Studies Standard – 3 Terms [064561D]

   ·Bachelor of Business and Commerce 2753 [074089G]

   The Minister has access to the Provider Registration and International Student Management
   System (PRISMS) managed by the Department of Education and Training. PRISMS
   indicates that the details of the applicant’s progress against the requirements of his package
   course are as follows:

   ·English Language programs (Beginner to Advanced) (1 to 50 weeks)[060789E]

   Period of study: 08/07/2013 – 13/09/2013

   Course Status: Cancelled – Student notifies Cessation of Studies

   ·University Foundation Studies Standard – 3 Terms [064561D]

   Period of study: 24/02/2014 – 08/12/2014

   Course Status: Cancelled – Unsatisfactory attendance

   ·Bachelor of Business and Commerce 2753 [074089G]

   Course Status: Cancelled – non payment of fees

   PRISMS indicates that the applicant has enrolled in another eleven (11) courses since he
   was granted his TU-573 Higher Education Sector visa. His performance in the other courses
   in which he has been enrolled is detailed below:

   The applicant finished [the] following courses:

   ·ABC Study Group Pty Ltd - English Language Programs (1 to 48 weeks) [060267J], on 22/11/2013

   ·UWS Enterprises Pty Ltd - English Language Programs (Beginner to Advanced) (1 to 50 weeks) [02851G], on 07/02/2014.

   ·George Education General English - General English (Beginner to Advanced) [076607G], the applicant did not commence this course until two years later on 25/04/2016 and finished this course on 27/05/2016.

   Sydney Institute of Business and Technology - Diploma of Commerce (52 weeks) [05176G]

   Proposed period of study: 16/02/2015 – 05/02/2016

   Actual period of study: 16/02/2015 – 05/02/2016

   Course Status: Cancelled – student notifies Cessation of studies

   Macquarie University - Bachelor of Commerce [048246D]

   Proposed period of study: 15/02/2016 – 31/12/2017

   Course Status: Cancelled – non-payment of fees

   Macquarie University Diploma of Accounting, Commerce and Business Administration [085299F]

   Proposed period of study: 18/07/2015 – 24/02/2017

   Actual period of study: 18/07/2016 – 11/09/2016

   Course Status: Cancelled – Student Notifies Cessation of Studies

   Macquarie University – Bachelor of Commerce [048246D]

   Proposed period of study: 27/02/2017 – 31/12/2018

   Course Status: Cancelled – Non-commencement of studies

   Holmes Institute Pty Ltd – Diploma of Business Management [075295D]

   Proposed period of study: 13/03/2017 – 31/12/2017

   Course Status: Cancelled – non commencement of studies

   Holmes Institute Bachelor of Business [058264G]

   Proposed period of study: 12/03/2018 – 31/12/2019

   Course Status: Cancelled – Non commencement of Studies

   George Education Group Pty Ltd Diploma of Leadership and Management [088005A]

   Proposed period of study: 08/05/2017 – 04/05/2018

   Actual period of study: 08/05/2017

   Course Status: Studying

   Wentworth Institute of Higher Education Pty Ltd - Bachelor of Business [084523M] Proposed period of study: 23/07/2018 – 25/06/2021 Course Status: Approved

   From analysing the records in relation to the applicant that are available on PRISMS the
   following facts can be ascertained:

   ·     It has now been nearly four years since the applicant was granted a TU-573 visa and he had not been able to academically progress to commence a Bachelor course.

   ·     Since entering Australia on 02 July 2013, the applicant has never successfully completed any courses outlined in his study plan for the purpose of the TU 573 visa. The applicant has significantly changed educational pathways since coming to Australia which also demonstrates that he does not have a genuine intention to study.

   ·     The applicant commenced studying in a Foundation Studies Standard course [064561D] from 24/02/2014 to 08/12/2014 however, he did not complete this course due to unsatisfactory attendance.

   ·     The applicant commenced studying a Diploma of Commerce course at Macquarie University from 16/02/2015 to 05/02/2016 however, his education provider has stated in PRISMS that he did not complete the course and failed to re-enrol at SIBT in Semester 1. Even when given the opportunity to re-enrol he failed to complete the course.

   ·     The applicant commenced studying a Diploma of Accounting, Commerce and Business Administration at Macquarie University from 18/07/2016 to 11/09/2016 however, his education provider has stated in PRISMS that he failed to re-enrol at Macquarie University International College (MUIC) term 6, 2016. MUIC commenced classes for Term 6, 2016 on Monday 12 September 2016.

   ·     The applicant has continually changed his enrolment in a registered course of study after the course commencement date.

   Based on the evidence available in PRISMS, it appeared that the applicant’s primary intention is not to progress in study while in Australia. Although he has maintained enrolments in various courses, he had failed to actually complete any course other than three English courses.  From the information it appeared he was not a genuine student.

   Applicant’s Response to the NOICC

5. On 23 May 2017 the applicant emailed a response to the NOICC stating (in summary):

   -For the past four years he has not obtained a Bachelor degree. He feels very anxious and stressful. He struggled in the four years.

   -His family has high expectations of him and he felt too much pressure from them.

   -He could not find the right way to study and did not know what to do.

   -An Agent introduced him to some schools where he could graduate and helped him apply. This is why he frequently changed schools.

   -He was stressed and felt some insomnia. He argued with his parents.

   -He now thinks he has found a better way to learn. He has set a goal to obtain a diploma as soon as possible in a new school, and then commence a Bachelor course.

   -His parents want him to study in Australia because he can have a better education here. He does not want to let them down. He wants a chance to continue to study in Australia.

   Delegate’s Decision

6. On 2 June 2017 the delegate decided to cancel the applicant’s visa.

7. In his decision record the delegate set out information as put to the applicant in the NIOICC.

8. The delegate was satisfied there were grounds for cancelling the applicant’s visa because it appeared the applicant was not, or likely not to be, a genuine student.

9. The applicant submitted a copy of the delegate’s decision record to the Tribunal.

   Tribunal hearing

10. The applicant appeared before the Tribunal on 16 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The following is a summary of the information provided by the applicant at the hearing:

    a.His Student visa was cancelled because he spent a lot of time without graduating, and he changed schools very often.  He didn’t attend class properly and he believed he could not achieve his goal.  He did not attend classes because he did not like to study so much.  He liked to have fun so did not attend class.  He would catch up with his friends and play on his computer at home.

    b.He applied for a Student visa because his family hoped he would receive a better education in Australia. He could not speak English well so they sent him to Australia. He did not tell his family he did not want to study. He did not communicate with them often. They thought he was studying quite well but this was not the fact.

    c.He is 28 years old.  He first came to Australia when he was 18. He applied for his last Student visa when he was 25 years old.  He applied for a Student visa then because he thought he wanted to stay in Australia, to study and migrate here.  If he can migrate to Australia he can then can choose whether to stay or to go back to China.

    d.He thought he could migrate to Australia by applying for a skilled migrant visa through his study and passing the IELTS test.  He did not attend class because he thought he would be able to do so in the future.  He was not in any hurry.  He thought if he did not attend the class today he could attend it tomorrow.

    e.His parents have financially supported him in the years he has been in Australia.  He does not know how much money they have spent on him.  They sometimes ask him how his studies are and if he has graduated yet.  He tells them he will soon. It is not true at present, but he thinks of his graduation.

    f.His parents know his visa has been cancelled, and they know why it was cancelled.   His father still hopes there will be an opportunity for the applicant to stay in Australia. His father thinks that the applicant has been in Australia a long time and that the environment and situation are more suitable for him.

    g.The applicant can speak English but not really well.

    h.Sometimes the applicant feels he wants to escape and avoid issues.  He previously was escaping so did not study properly.  He tried to stay in Australia in order to escape.  He means he wants to escape his responsibilities.

    i.He would like to go back to China but he thinks he should get migration status first, and then go back.  If he can’t get this he can only go back to China.

    j.The last time he attended class was in June /July 2016.  In the three and a half years since he last attended class he has not done anything.  He gets up, watches television, plays video games and works out.  He thinks this means he has been wasting his time for three years.

    k.He is not clear whether he has permission to work in Australia.  He thinks he has.  It doesn’t interest him if his visa conditions allow him to work, because he is too lazy and he doesn’t want to do anything.  But he worked a couple of weeks for his aunts to sell a house property.  It was not paid work.  He was trying to learn something about his aunt’s business.

    l.The Department was not satisfied he was a genuine student. He thinks he was a student but he just didn’t study properly, and he continued to change schools and kept failing.

    m.He did attend school until the diploma stage. He attended high school and then university for a business and commerce diploma in 2014 or 2015.  He did not pass the diploma course because he didn’t study properly.  He didn’t try his best.

    n.After he stopped attending class in mid 2016 he thinks he was no longer a genuine student. He agrees the ground of cancellation probably exists.

    o.He does not want his visa cancelled because he does not want to be subject to a three year exclusion period. He wants to be able to find another way to stay in Australia such as via an investment. 

    p.If his visa is not cancelled he will think of another way to stay in Australia in the short term.  It would be very simple to apply for business migration.  He would probably seek help from his parents, to see if they can help him with investment here.  His parents’ financial situation is just okay.  His father works in an investment business and his mother works in Customs. They live in Shenzhen. The applicant might start a hospitality business with friends, or open some shops.  He does not understand what the conditions are to obtain an investment visa.

    q.His Student visa was due to expire on 31 March 2018.  If there is no three year exclusion period does he have any other way to apply for a visa - he does not know the answer to this question.  He previously consulted his former lawyer who told him that it was not possible to obtain another visa.

    r.He has complied with his other visa conditions.

    s.He does not think the student visa cancellation will cause him any financial hardship. In relation to emotional or psychological hardship he thinks the visa cancellation may cause him to feel lost but it will have not any severe issues for him.

    t.If he returns to China he will perhaps try to get work in a  company, such as a financial institution. He will do office or clerical  work.

    u.He does not have any problems in China.  There is no other reason he does not want to return to China. He just wants to have migration status in Australia.

    v.He may feel blame and pressure from his family in China. They think he has been here for a long time and everything should go smoothly. He can only accept their reaction if the only outcome is for him to go back to China.

    w.There are no other reasons why his Student visa should not be cancelled. He just hopes there will not be a three year exclusion period applied to him, so he can return with another migration visa. He has not done anything much to find out if this is possible but perhaps he will try to find out in the future.

    x.It is important to him to be able to return to Australia because he has been living here for many years and he has many friends here. His parents want him to stay here and fulfil their expectations. They want him to have status here so they can come over in the future.  They have visited him and some of their friends here in Australia many times.

    y.He has no siblings. He last saw his parents in March 2017 when he returned to China then. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa). 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?

12. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

13. 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]).

14. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

15. The applicant confirmed at hearing that in mid-2016 he stopped attending classes and studying. He conceded that he was no longer a student from that time.  Since mid-2016 the applicant has not resumed studies.  The available education records also confirm that the applicant has not successfully completed any course since he finished his General English course in May 2016.  The applicant has expressed no intention or desire to resume his studies in Australia.  He stated several times at hearing that he is interested in a migration pathway based upon business or investment criteria.

16. On the basis of the available evidence the Tribunal finds that the applicant is not a genuine student. The Tribunal is therefore 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 the visa should be cancelled.

    Consideration of discretion

17. 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 and stay in Australia

18. The applicant first came to Australia to study in 2009.  After his first Student visa expired in 2012 he applied for and obtained another Student visa in 2013, with an expiry date of 31 March 2018.  This visa is the subject of the cancellation decision.  The applicant’s records show he completed a secondary school level course as well some English studies courses in his earlier years in Australia. During his years in Australia he has departed and returned numerous times.

19. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study.  However he has not been studying since mid-2016 and, on his own evidence, has done very little in Australia in the years he has remained here.  Given the applicant has not been studying since mid-2016 the Tribunal finds this factor weighs in favour of the cancellation of the visa.

    Whether the visa holder has a compelling need to travel to or remain in Australia

20. The applicant has not expressed any need to remain in Australia. He states it is his and his parents’ wish that he migrates to Australia but he was not able to explain any need for him to do so, beyond his familiarity with living in Australia. He states he is able to return to China and that he will pursue work there if he cannot return to Australia.

21. The Tribunal is not satisfied that there is anything about the applicant’s situation that compels him to remain in Australia and which would require his visa not to be cancelled.

    The circumstances in which ground of cancellation arose

1. In his response to the NOICC the applicant wrote that he had struggled in his studies and felt anxious and stressed about them.  He had difficulty sleeping and felt that his family exerted too much pressure on him.

2. The Tribunal accepts that the applicant may have felt anxious and stressed by his studies and his parents’ expectations.  However this is not an unusual predicament for students. In the Tribunal’s view it does not reasonably justify his lack of effort to continue his studies.

3. The applicant provided a different explanation for his lack of study at his hearing.  He stated at hearing that he stopped attending class and studying because he was having fun in Australia – he was spending time with his friends and playing computer games. 

4. The Tribunal considers that there is nothing about the relevant circumstances to warrant not cancelling the applicant’s visa.  He gave up his studies to enjoy himself and to avoid the effort and stress of study. The Tribunal considers this factor weighs in favour of cancellation of the visa.

   The extent of compliance with visa conditions

5. The applicant gave evidence that he has otherwise complied with his visa conditions in Australia. The Tribunal gives this factor some weight in the applicant’s favour.

   The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

6. The applicant stated at hearing that he did not think the visa cancellation would result in any financial hardship for him.  He stated he would be able to pursue work options on return to China.  There is no indication that this would not be possible and the Tribunal accepts that the applicant would have employment opportunities in China.

7. The applicant’s parent have continued to financially support the applicant in Australia despite him abandoning his studies here.  The applicant’s intentions to remain in Australia also do not involve resuming his studies in Australia. The applicant’s return to China would therefore save his parents the additional expense of continuing to maintain the applicant in an overseas country.  On the evidence before it the Tribunal is not satisfied that cancellation of the applicant’s visa results in financial hardship.

8. The applicant also spoke about his parent’s disappointment if he cannot obtain ‘migration’ to Australia.  He expressed a wish to remain in Australia because he has been here for some time, formed connections to people and the lifestyle and may feel lost in China. The Tribunal therefore accepts it will cause the applicant and his parents some emotional distress and disappointment for his visa to remain cancelled.  However, the Tribunal is satisfied that there is not a degree of hardship to indicate that the visa should not be cancelled.

9. Looking at the circumstances cumulatively, the Tribunal is not satisfied there is a degree of hardship that means that the applicant’s visa should not be cancelled.

   The past and present conduct of the visa holder towards the department

10. The applicant responded to the Department’s NOICC. He has also engaged with and  cooperated with the Tribunal during his review application. The Tribunal therefore gives this aspect some weight in the applicant’s favour.

    If the breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder are there mitigating, compassionate and compelling factors

11. The applicant is not a subclass 457 visa holder.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

12. The Tribunal is mindful that the visa cancellation could lead to the applicant becoming an unlawful non-citizen and subject to detention and removal from Australia.  However the applicant is able to depart Australia and return to China so there is no reason why he would necessarily become unlawful and be subject to detention in Australia. The applicant can also  seek further advice pertaining to his immigration status.  He has stated he would return to China if he has no alternative migration option in Australia.  The Tribunal does not consider that the consequence of becoming unlawful and being subject to detention and removal, weighs against the cancellation of the visa.

13. The Tribunal is also mindful that a visa cancellation would mean that the applicant will be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

14. The applicant has pointed to the three-year exclusion period as his main concern regarding the consequences of his visa cancellation.  When the Tribunal tried to ascertain the nature of the applicant’s concerns he merely repeated that he wanted to try business and investment related visa options so he could stay in Australia. His responses were vague and did not convey much sense of any need to remain in Australia.

15. The applicant was responsible in Australia for pursuing his studies and complying with the purpose of his visa. The reasons for his lack of study were within his control and capacity to remedy.  If he had continued to be a student in Australia his visa would not have been cancelled and the exclusion period would not have arisen. The Tribunal does not consider that the consequence of being subject to a three year exclusion period, weighs against the cancellation of the visa.

    Whether there would be consequential cancellations under s.140

16. There is no evidence that there would be consequential cancellations in this case.

    Whether any international obligations would be breached as a result of the cancellation

17. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.  The applicant did not indicate he would have any difficulties returning to China or any particular problems there.

    Any other relevant matters.

18. There is no indication of any other relevant matters to be taken into account in relation to the cancellation.

    Conclusion

19. 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

20. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Melissa McAdam
    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.