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

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).
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
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).
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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading WAN (Migration)

Details

AGLC: WAN (Migration) [2019] AATA 6077
Case: [2019] AATA 6077
Decision Date: 18 December 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose because the Department of Home Affairs was not satisfied that the applicant was a genuine student, citing poor academic progress, significant changes to educational pathways, and unsatisfactory attendance as grounds for cancellation. The applicant sought to have the cancellation decision reviewed and the three-year exclusion period set aside.

The Tribunal was required to determine whether the ground for cancellation, specifically that the applicant was not a genuine student, was established under section 116(1)(fa)(i) of the Migration Act 1958 (Cth). If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the applicant's visa should be cancelled, taking into account all relevant circumstances, including the applicant's submissions and the Department's policy guidelines.

The Tribunal found that the applicant was not a genuine student, based significantly on his own evidence. He admitted to not attending classes since mid-2016, preferring to socialise and play computer games, and acknowledged that he had been wasting his time. He also admitted that after ceasing to attend classes, he was no longer a genuine student and agreed that the ground for cancellation likely existed. In considering the exercise of discretion, the Tribunal noted that the applicant had not demonstrated a compelling need to remain in Australia, as he could return to China and pursue work there. While acknowledging the applicant's and his parents' desire for him to migrate to Australia, the Tribunal found this did not outweigh the established ground for cancellation. The Tribunal concluded that the circumstances did not warrant setting aside the cancellation decision.

The Tribunal affirmed the delegate's decision to cancel the applicant's visa. Consequently, the applicant remained subject to the standard three-year exclusion period from re-entering Australia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 On 2 June 2017 the delegate decided to cancel the applicant’s visa. In his decision record the delegate set out information as put to the applicant in the NIOICC. 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. The applicant submitted a copy of the delegate’s decision record to the Tribunal.Tribunal hearing 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

Ratio Decidendi

Legal Principle Established

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 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 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. 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 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. 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 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. 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. 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.