Wang (Migration) - [2019] AATA 5560

Wang (Migration) [2019] AATA 5560 (28 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Wenqi Wang
CASE NUMBER:  1718969
HOME AFFAIRS REFERENCE(S):          BCC2017/2115378
MEMBER:Mark O'Loughlin
DATE:28 August 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 28 August 2019 at 12:58pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Offer of Admission in a registered higher education course not accepted – applicant’s difficulty passing foundational English subjects – applicant returned to China due to family illness – applicant not seeking to mislead Department – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 573.223, 573.231; Schedule 8; Condition 8156
CASES
Singh v MIBP [2016] FCA 679
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 8 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
On 25 July 2016 the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.
The delegate cancelled the visa under s.116 (1)(b) on the basis that the applicant had breached condition 8156 because she was not enrolled in a bachelor’s degree or a master’s degree course and therefore did not continue to satisfy either subclauses 573.231 or 573.223(1A). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 12 August 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)(b). 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?
s.116(1)(b) - non-compliance with conditions
A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition relevantly requires that the applicant continue to be a person who would satisfy the primary criteria for the grant of the visa.
In respect of the criterion requiring the applicant to…

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 Wang (Migration)

Details

AGLC: Wang (Migration) [2019] AATA 5560
Case: [2019] AATA 5560
Decision Date: 28 August 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, held by Ms. Wang. The dispute arose because Ms. Wang did not accept an offer of admission to a registered higher education course, experiencing difficulties in passing foundational English subjects, and subsequently returned to China due to family illness.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the visa should be cancelled in the exercise of the Tribunal's discretion. The Tribunal also considered the applicant's circumstances, including her difficulties with English proficiency, family illness, and her understanding of her visa obligations.

The Tribunal found that the ground for cancellation existed, but it was not a mandatory cancellation. In exercising its discretion, the Tribunal had regard to the applicant's stated intention to study in Australia and the emotional hardship she would suffer if unable to do so, although it found her testimony regarding her grandfather's health unreliable. The Tribunal accepted that the applicant's difficulties in improving her English and family problems contributed to her inability to maintain enrolment and deal with the notification of her visa status. While not finding the circumstances beyond her control, the Tribunal accepted she was upset and confused. The Tribunal was satisfied that the applicant did not intend to mislead the Department, but noted a lack of attention to visa requirements and a tendency to seek advice from unreliable sources. The Tribunal also considered the potential consequences of cancellation, including the need for a bridging visa, potential detention and removal, and the impact on future visa applications under Public Interest Criterion 4013, which would restrict her ability to lodge further visa applications for three years.

The Tribunal set aside the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1) (b) 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’. There is no evidence that the applicant has any purpose in coming to and staying in Australia other than study nor is there any suggestion of a compelling need to travel to or remain in Australia other than to study. The evidence about the time that the applicant spent without enrolment and without an offer of enrolment is limited and the Tribunal cannot make a finding about the extent of the applicant’s failure to comply with visa conditions. The applicant gave evidence, which the Tribunal accepts, that she will suffer emotional hardship if she is not able to undertake her study as her family and extended family have significant expectations. The applicant went so far as to suggest that her grandfather’s health might be cast into crisis if she returns without the opportunity to pursue further study although there is no evidence of this other than her own testimony and the Tribunal is not satisfied that it is reliable. The circumstances in which the breach arose are essentially that the applicant had substantial difficulty improving her English to the level that she could undertake study and for that reason she was unable to maintain her enrolment fruitfully. The applicant gave evidence that some family problems that arose at about the time of the delegate’s decision compromised her ability to deal with the notification of the impending consideration of her visa status. The Tribunal does not find that the ground for cancellation arose from circumstances beyond the visa holder’s control, but accepts that she was upset and confused about where she stood. The Tribunal is satisfied that the applicant’s behaviour does not reflect an effort to mislead the department although it is clear that it has been marked by a surprising lack of attention to the detail of her visa requirements and a disturbing tendency to seek the advice of friends over more reliable sources of information such as the educational institutions with which she has been involved or her representative. There is no evidence that there would be any consequential visa cancellations under s 140 of the Act. If the Student visa is cancelled the applicant will need to apply for a bridging visa. She may become liable to detention under section 189 and to removal under section 198 if she does not get a bridging visa or leave voluntarily. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013. That will mean she will be restricted in lodging an application for another visa to Australia for 3 years after the cancellation of the Student visa.